SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________ to ________________
Commission File No. 0-21754
SODAK GAMING, INC.
(Exact name of registrant as specified in its charter)
SOUTH DAKOTA 46-0407053
(State of Incorporation) (I.R.S. Employer Identification No.)
5301 S. Highway 16
Rapid City, South Dakota 57701
(Address of principal executive offices)
(605) 341-5400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes __X__ No _____
At August 11, 1999, there were outstanding 22,814,140 shares of the Company's
common stock.
Page 1 of 58
Exhibit Index Page 24
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Sodak Gaming, Inc.
INDEX
<TABLE>
<CAPTION>
Page
PART I. FINANCIAL INFORMATION
<S> <C>
Item 1. Consolidated Financial Statements
Consolidated Statements of Earnings for the three months ended
June 30, 1999 and 1998 3
Consolidated Statements of Earnings for the six months ended
June 30, 1999 and 1998 4
Consolidated Balance Sheets as of June 30, 1999 and December 31, 1998 5
Consolidated Statements of Cash Flows for the six months ended
June 30, 1999 and 1998 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 9
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 21
Item 2. Changes in Securities 22
Item 3. Defaults Upon Senior Securities 22
Item 4. Submission of Matters to a Vote of Security Holders 22
Item 5. Other Information 22
Item 6. Exhibits and Reports on Form 8-K 22
SIGNATURES 23
EXHIBIT INDEX 24
</TABLE>
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PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Sodak Gaming, Inc.
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended June 30,
-----------------------------------------
Dollars in thousands, except per share amounts 1999 1998
------------------------------------------------------------ ------------------- --------------------
<S> <C> <C>
Revenue:
Product sales $ 16,695 14,969
Wide area progressive systems 4,069 3,915
Financing income 1,768 2,551
------------------- --------------------
Total revenue 22,532 21,435
------------------- --------------------
Costs and expenses:
Cost of product sales 12,189 11,366
Selling, general and administrative 3,783 4,688
Depreciation and amortization 627 306
Interest and financing costs 45 363
------------------- --------------------
Total costs and expenses 16,644 16,723
------------------- --------------------
Income from operations 5,888 4,712
Other income, net 181 45
------------------- --------------------
Earnings before income taxes 6,069 4,757
Provision for income taxes 2,245 1,715
------------------- --------------------
Earnings from continuing operations 3,824 3,042
Income (loss) from discontinued operations
less applicable income taxes 1,411 (179)
------------------- --------------------
Net earnings $ 5,235 2,863
=================== ====================
Earnings per share basic and diluted:
Earnings from continuing operations $ 0.17 0.13
Income (loss) from discontinued operations 0.06 0.00
------------------- --------------------
Net earnings $ 0.23 0.13
=================== ====================
Weighted average number of common and assumed conversion
shares outstanding 23,009,713 22,769,961
=================== ====================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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Sodak Gaming, Inc.
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
<TABLE>
<CAPTION>
Six months ended June 30,
-----------------------------------------
Dollars in thousands, except per share amounts 1999 1998
------------------------------------------------------------ ------------------- --------------------
<S> <C> <C>
Revenue:
Product sales $ 34,628 25,732
Wide area progressive systems 7,670 7,584
Financing income 3,548 4,639
------------------- --------------------
Total revenue 45,846 37,955
------------------- --------------------
Costs and expenses:
Cost of product sales 26,177 19,561
Selling, general and administrative 7,642 7,844
Depreciation and amortization 1,242 605
Interest and financing costs 169 943
------------------- --------------------
Total costs and expenses 35,230 28,953
------------------- --------------------
Income from operations 10,616 9,002
Other income, net 245 66
------------------- --------------------
Earnings before income taxes 10,861 9,068
Provision for income taxes 3,996 3,274
------------------- --------------------
Earnings from continuing operations 6,865 5,794
------------------- --------------------
Discontinued operations:
Income (loss) from discontinued operations
less applicable income taxes 1,768 (979)
Loss on disposal of joint venture interest,
less applicable income taxes (285) -
------------------- --------------------
Total discontinued operations 1,483 (979)
------------------- --------------------
Net earnings $ 8,348 4,815
=================== ====================
Earnings per share basic and diluted:
Earnings from continuing operations $ 0.30 0.25
Income (loss) from discontinued operations .07 (0.04)
Loss on disposal of joint venture interest (0.01) -
------------------- --------------------
Net earnings per share $ 0.36 0.21
=================== ====================
Weighted average number of common and assumed conversion
shares outstanding 22,992,766 22,776,495
=================== ====================
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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Sodak Gaming, Inc.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
In thousands, except share and per share amounts June 30, 1999 December 31, 1998
-------------------------------------------------------------------------------- ------------------- -----------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 23,199 6,100
Current trade, notes and interest receivables 37,596 38,210
Net investment in sales-type leases, current maturities 2,384 1,640
Inventories 21,194 14,565
Prepaid expenses 324 408
Refundable income taxes - 1,165
Net assets held for sale 21,736 -
Deferred income taxes 2,571 1,870
------------------- ---------------
Total current assets 109,004 63,958
Property and equipment, net 17,030 47,117
Notes receivable, net of current maturities 17,613 24,708
Net investment in sales-type leases, net of current maturities 1,559 1,917
Investment in joint venture - 2,400
Deferred income taxes - 202
Other assets 58 206
------------------- ---------------
$ 145,264 140,508
=================== ===============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 24,949 16,313
Note payable - 1,500
Current maturities of long-term debt - 2,836
Income taxes payable 1,217 -
Deferred financing fee revenue 899 1,278
Accrued payroll and payroll-related costs 1,403 3,891
Other accrued liabilities 523 3,328
------------------- ---------------
Total current liabilities 28,991 29,146
Long-term debt, net of current maturities - 4,366
Deferred Taxes 777 -
------------------- ---------------
Total liabilities 29,768 33,512
------------------- ---------------
Shareholders' equity:
Preferred stock, $0.001 par value, 25,000,000 shares authorized, none
issued and outstanding - -
Common stock, $0.001 par value, 75,000,000 shares authorized, 22,814,140
and 22,789,908 shares
issued and outstanding at June 30, 1999 and
December 31, 1998, respectively 23 23
Additional paid-in capital 64,377 64,226
Retained earnings 51,096 42,747
------------------- ---------------
Total shareholders' equity 115,496 106,996
------------------- ---------------
$ 145,264 140,508
=================== ===============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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<PAGE>
Sodak Gaming, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six months ended June 30,
-----------------------------------------
In thousands 1999 1998
-------------------------------------------------------------------------- ------------------- -------------------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 8,348 4,815
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 1,854 2,937
Loss on sale of joint venture interest 439 -
Provision for doubtful accounts - 244
Gain on sale of property, equipment and real estate - (47)
Deferred income taxes 278 321
Changes in operating assets and liabilities:
Trade and accrued interest receivables 1,729 (15)
Notes receivable relating to financed sales 4,784 16,160
Net investment in sales-type leases (386) -
Inventories (6,807) 3,654
Prepaid expenses (102) (118)
Accounts payable 8,885 (12,756)
Accrued liabilities and deferred financing fees (3,399) 2,017
Income taxes payable, net of refundable income taxes 2,382 (268)
------------------- -------------------
Net cash provided by operating activities 18,005 16,944
------------------- -------------------
Cash flows from investing activities:
Cash advanced on notes receivable - (6,576)
Payments received on notes receivable 3,061 2,497
Proceeds from sale of property, equipment and real estate - 524
Purchases of property and equipment (926) (4,553)
Decrease in other assets 148 157
------------------- -------------------
Net cash provided by (used in) investing activities 2,283 (7,951)
------------------- -------------------
Cash flows from financing activities:
Proceeds from long-term borrowings - 28,000
Principal repayments of long-term debt (3,340) (33,962)
Net proceeds from exercise of stock options 151 -
------------------- -------------------
Net cash used in financing activities (3,189) (5,962)
------------------- -------------------
Effect of exchange rate changes on cash and cash equivalents - (50)
------------------- -------------------
Net increase in cash and cash equivalents 17,099 2,981
Cash and cash equivalents, beginning of period 6,100 3,942
------------------- -------------------
Cash and cash equivalents, end of period $ 23,199 6,923
=================== ===================
Supplemental disclosure of cash flow information:
Cash paid during the period for interest $ 588 1,665
Cash paid during the period for income taxes 2,134 2,877
Supplemental schedule of noncash investing activity:
Note receivable obtained from sale of joint venture interest $ 1,961 -
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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Sodak Gaming, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1999
(Unaudited)
NOTE 1 - UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
The accompanying unaudited consolidated financial statements of Sodak
Gaming, Inc. and its consolidated subsidiaries have been prepared by the Company
in accordance with generally accepted accounting principles for interim
financial information, pursuant to the rules and regulations of the Securities
and Exchange Commission. Pursuant to such rules and regulations, certain
financial information and footnote disclosures normally included in the
consolidated financial statements have been condensed or omitted. The results
for the periods indicated are unaudited, but reflect all adjustments (consisting
only of normal recurring adjustments) which management considers necessary for a
fair presentation of operating results.
Results of operations for interim periods are not necessarily indicative
of a full year of operations.
These consolidated financial statements should be read in conjunction with
the 1998 consolidated financial statements and notes thereto as published in the
annual report on Form 10-K.
Certain 1998 amounts have been reclassified to conform to the 1999
presentation.
NOTE 2 - MERGER WITH IGT
On March 11, 1999, the Company announced that a definitive agreement was
signed whereby the Company would be acquired by a wholly-owned subsidiary of
International Game Technology (NYSE: IGT), a world leader in the design,
development and manufacture of microprocessor-based gaming products and software
systems in all jurisdictions where gaming is legal. Under this merger agreement,
each outstanding share of Sodak common stock will be converted into the right to
receive $10 in cash. The Company would become a wholly-owned subsidiary under
the terms of the agreement. The shareholders of Sodak, at a special shareholder
meeting on July 7, 1999, voted to approve the merger agreement. The transaction
is expected to close in the second half of 1999. As conditions to closing, the
Company agreed to divest its wholly-owned riverboat casino entertainment
complex, the MISS MARQUETTE, and its 50% joint venture interest to develop a
gaming riverboat complex in Louisiana.
The Company is proceeding with its divestiture of gaming operations. On
March 31, 1999, the Company sold its interest in the Louisiana joint venture to
a subsidiary of Hollywood Casino Corporation for $2.5 million, payable six
months after the opening of the Louisiana complex. The amount was discounted to
reflect the present value of the transaction, resulting in a loss of $0.4
million. On July 30, 1999, the Company entered into a definitive agreement to
sell the Miss Marquette riverboat casino and associated real property and assets
to Lady Luck Gaming Corporation. The agreement provides for a sale price of
$41.67 million and the assumption of certain liabilities. Closing of the sale is
anticipated to be prior to October 31, 1999. The assets of the Miss Marquette
Riverboat expected to be divested are classified as net assets held for sale.
Completion of the sale is conditioned upon regulatory approvals, financing and
satisfaction of other customary conditions.
NOTE 3 - RECENT ACCOUNTING PRONOUNCEMENT
During 1998, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 133, ACCOUNTING FOR
DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES. SFAS No. 133 establishes new
standards for recognizing all derivatives as either assets or liabilities, and
measuring those instruments at fair value. The Company plans to adopt the new
standard during the first quarter of the year 2001, as required. The Company is
in the process of evaluating SFAS 133 and the impact on the Company, but does
not believe the impact will be material.
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NOTE 4 - COMMON SHARES OUTSTANDING
The following is a reconciliation of basic weighted average shares
outstanding to diluted weighted average shares outstanding for the three-month
and six month periods ended June 30, 1999 and 1998:
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
------------------------------------ ----------------------------------
1999 1998 1999 1998
---------------- ------------------ ---------------- ----------------
<S> <C> <C> <C> <C>
Weighted average common shares outstanding
for basic EPS calculation 22,814,140 22,758,408 22,802,225 22,758,408
Adjustments for assumed conversion shares
(stock options) 195,573 11,553 190,541 18,087
---------------- ------------------ ---------------- ----------------
Weighted average common shares
outstanding for diluted EPS calculation 23,009,713 22,769,961 22,992,766 22,776,495
================ ================== ================ ================
</TABLE>
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<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
GENERAL
The Company's core business is distributing gaming equipment and ancillary
products and providing wide area progressive systems primarily to Native
American casinos. The Company also operates the MISS MARQUETTE riverboat casino
and entertainment facility located on the Mississippi River at Marquette, Iowa.
Other business activities include a participation in Harrah's Entertainment,
Inc.'s (Harrah's) management fee from Harrah's Phoenix Ak-Chin casino in Arizona
and income from financing product sales and casino ventures. Further, the
Company had entered a joint venture with subsidiaries of Hollywood Casino
Corporation (Hollywood) and New Orleans Paddlewheels (NOP) to develop a hotel,
dining, retail and riverboat casino entertainment complex on the Red River in
downtown Shreveport, Louisiana.
On March 11, 1999, the Company announced that a definitive agreement was
signed whereby the Company would be acquired by a wholly-owned subsidiary of
International Game Technology (NYSE: IGT), a world leader in the design,
development and manufacture of microprocessor-based gaming products and software
systems in all jurisdictions where gaming is legal. Under this merger agreement,
each outstanding share of Sodak common stock will be converted into the right to
receive $10 in cash. The Company would become a wholly-owned subsidiary under
the terms of the agreement. The shareholders of Sodak, at a special shareholder
meeting on July 7, 1999, voted to approve the merger agreement. The transaction
is expected to close in the second half of 1999. As conditions to closing, the
Company agreed to divest its wholly-owned riverboat casino entertainment
complex, the MISS MARQUETTE, and its 50% joint venture interest to develop a
gaming riverboat complex in Louisiana.
The Company is proceeding with its divestiture of gaming operations. On
March 31, 1999, the Company sold its interest in the Louisiana joint venture to
a subsidiary of Hollywood Casino Corporation for $2.5 million, payable six
months after the opening of the Louisiana complex. The amount was discounted to
reflect the present value of the transaction, resulting in a loss of $0.4
million. On July 30, 1999, the Company entered into a definitive agreement to
sell the Miss Marquette riverboat casino and associated real property and assets
to Lady Luck Gaming Corporation. The agreement provides for a sale price of
$41.67 million and the assumption of certain liabilities. Closing of the sale is
anticipated to be prior to October 31, 1999. Completion of the sale is
conditioned upon regulatory approvals, financing and satisfaction of other
customary conditions.
The Company operated a casino and various gaming hall and route operations
in certain Latin American countries from May 1995 through December 1998. In June
1998, the Company announced a corporate restructuring designed to refocus the
Company on its North American businesses as described above. As part of the
restructuring, the Company divested its Latin American gaming operations in
Peru, Ecuador and Brazil. As of December 31, 1998, the restructuring was
complete, and all Latin American operations were divested.
RESULTS OF OPERATIONS - THREE MONTHS ENDED JUNE 30, 1999
COMPARED TO THE THREE MONTHS ENDED JUNE 30, 1998
Net earnings from continuing operations increased 26% to $3.8 million, or
$0.17 per share for the three months ended June 30, 1999, compared to $3.0
million, or $0.13 per share for the same period in 1998. The increase in
earnings was primarily due to increased product sales, decreased selling,
general
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and administrative expense, and decreased interest and financing costs. Total
revenue increased 5% to $22.5 million in 1999, compared to $21.4 million in
1998. Total costs and expenses decreased slightly to $16.6 million in 1999,
compared to $16.7 million in 1998.
PRODUCT SALES
Revenue from product sales increased 12% to $16.7 million in 1999 compared
to $15.0 million in 1998. The increase was the result of a 4% increase in
machine sales to $12.6 million in 1999, compared to $12.1 million in 1998 and a
44% increase in ancillary product sales to $4.1 million in 1999 compared to $2.9
million in 1998.
New gaming machine shipments decreased 6% to approximately 1,515 machines
in 1999 compared to 1,620 machines in 1998. Average revenue per new machine sold
during the second quarter of 1999 increased to approximately $8,300, compared to
$7,200 in 1998, due in part to an increased percentage of enhanced,
higher-priced machines in the mix of machines sold. In 1998, the Company sold
230 used machines compared to none in 1999.
In 1999, 77% of the new machine shipments were to casinos in Arizona,
North Carolina and Wisconsin. In 1998, 88% of the new machine shipments were to
casinos in Kansas, Michigan, North Carolina, New Mexico, Oregon and Wisconsin.
Growth of gaming in Native American jurisdictions is outside the control of the
Company and is influenced by the legal, electoral and regulatory processes of
those jurisdictions.
The cost of product sales increased 7% to $12.2 million in 1999, from
$11.4 million in 1998 as a result of increased product sales volume. The gross
margin on product sales was 27.0% in 1999 compared to 24.1% in 1998. The
increase in gross margin is primarily due to the 44% increase in ancillary
product sales which carry higher margins than machines and the decrease in used
machine sales which carry a lower margin than new machines.
The Company believes that its ability to provide products would be
unaffected by the pending acquisition of the Company by IGT.
WIDE AREA PROGRESSIVE SYSTEMS
Wide area progressive systems revenue increased 4% to $4.1 million in
1999, compared to $3.9 million in 1998. The increase was the result of an
increase in both the number of systems offered and the number of machines on
such systems. At June 30, 1999, 25 systems were in operation compared to 16
systems at June 30, 1998. During the second quarter of 1999, two new systems
were introduced: ELVIS in a $1.00 denomination (one interstate and one
intrastate). The number of machines on the systems at June 30, 1999 increased to
approximately 2,250 from approximately 1,800 at June 30, 1998. While the number
of machines grew, revenue increased modestly due to the fact that the Company
continued to replace machines on older systems which provide higher margins to
the Company with machines on newer systems which provide lower margins to the
Company. These newer systems have greater player appeal and acceptance, as well
as greater casino acceptance. Continued machine additions to existing systems
along with the introduction of new, innovative systems and the placement of
machines and systems in new jurisdictions is anticipated to provide increased
future revenue growth. However, there can be no assurance that casinos will
continue adding systems and machines and that necessary regulatory approvals
will be obtained in prospective jurisdictions. Furthermore, public acceptance of
these
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systems and the entry of competing systems of other gaming companies could
affect the Company's future revenue from wide area progressive systems.
At June 30, 1999, the Company offered wide area progressive systems in
Arizona (which permits the operation of intrastate systems in lieu of interstate
systems), Connecticut, Iowa, Kansas, Louisiana, Michigan, Minnesota, New Mexico,
North Dakota, Oregon, South Dakota and Wisconsin. The systems in operation were:
HIGH ROLLERS, MEGABUCKS (one interstate and one intrastate), DOLLARS DELUXE,
SLOTOPOLY (one interstate and one intrastate), FABULOUS 50's, QUARTERMANIA (one
interstate and two intrastate), WHEEL OF GOLD, TOTEM POLE, PINBALLMANIA,
JEOPARDY! (one interstate and one intrastate), Nickelmania, SUPER NICKELMANIA,
WHEEL OF FORTUNE in both $1.00 (one interstate and one intrastate) and 25(cent)
denominations (one interstate and two intrastate), and ELVIS in both $1.00 (one
interstate and one intrastate) and 25(cent) denominations.
The Company believes that its ability to provide wide area progressive
systems would be unaffected by the pending acquisition of the Company by IGT.
FINANCING INCOME
Financing income results from interest income on notes receivable, fees
charged in association with financing arrangements and the Company's portion of
the management fee from Harrah's Entertainment, Inc.'s (Harrah's) Phoenix
Ak-Chin casino and entertainment facility. Financing income decreased 31% to
$1.8 million in 1999, compared to $2.5 million in 1998. The decrease was
primarily due to a lower outstanding balance of interest-bearing receivables
related to financed sales in 1999 compared to 1998, as well as, $0.7 million in
financing fees recognized in 1998 for arranging financing for casino projects.
The Company recognized revenue of $0.4 million in both 1999 and 1998 as
its share of Harrah's management fee from the Harrah's Phoenix Ak-Chin casino
located near Phoenix, Arizona (Harrah's is a 14% shareholder of the Company).
This fee is earned in conjunction with a financing guaranty provided to Harrah's
by the Company during the initial development and early operations phases of the
facility. The guaranty expired in 1996 when the loan was paid in full. As
consideration for the guaranty, the Company receives, from Harrah's, 4% of the
distributable net income of the gaming operation over the term of the management
contract, which expires December 1999. The Company is entitled to participate in
any extensions to the management agreement between Harrah's and the Native
American tribe associated with the Harrah's Phoenix Ak-Chin. There can be no
assurance that Harrah's management contract will be extended or that the terms
of any extension will not change materially from the current management
contract.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses decreased 19% to $3.8 million
in 1999, from $4.7 million in 1998 primarily due to lower severance expenses in
1999. As a percent of total revenue, selling, general and administrative
expenses decreased to 16.8% in 1999 compared to 21.9% in 1998.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization increased 105% to $.6 million in 1999,
compared to $.3 million in 1998. This increase was primarily attributable to a
Company-wide information system placed in service in the fourth quarter of 1998.
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INTEREST AND FINANCING COSTS
Interest and financing costs decreased to $0.04 million in 1999, from $.4
million in 1998. The decrease in interest and financing costs was primarily the
result of increased cash flows from operations during the latter part of 1998
and into 1999, which in turn decreased second quarter 1999 borrowings to fund
working capital needs as compared to 1998.
INCOME FROM OPERATIONS
The cumulative effect of the above described changes resulted in a 25%
increase in income from operations to $5.9 million in 1999, compared to $4.7
million in 1998. As a percent of total revenue, income from operations increased
to 26% in 1999, from 22% in 1998.
OTHER INCOME
Other income, which consists primarily of interest income, increased to
$0.2 million in 1999 from $0.05 million in 1998. The increases is primarily due
to the increase in cash and cash equivalents, which have been invested in short
term interest bearing securities.
PROVISION FOR INCOME TAXES
Provision for income taxes was $2.2 million in 1999 as compared to $1.7
million in 1998, representing 37% and 36% of earnings before income taxes in
1999 and 1998, respectively.
DISCONTINUED OPERATIONS
GAMING OPERATIONS
As discussed on page 9, the Company plans to divest its gaming operations.
Income from discontinued operations increased to $1.4 million or $0.06 per share
for the three months ended June 30, 1999, compared to a loss of ($0.2) million
for the same period in 1998.
Gaming operations revenue decreased 35% to $9.5 million in 1999, from
$14.6 million in 1998. The decrease in gaming operations revenue is due to the
divestiture of international gaming operations in the last two quarters of 1998.
Gaming operations expenses decreased 49% to $6.8 million in 1999, compared
to $13.4 million in 1998. The decrease in gaming operations expenses is due to
the divestiture of international gaming operations in the last two quarters of
1998.
Selling, general and administrative expenses from the discontinued
operations decreased 80% to $0.2 million in 1999, compared to $1.0 million in
1998. Interest expense from the discontinued operations decreased to $.3 million
in 1999 compared to $.4 million in 1998. Income tax expense from the
discontinued operations increased to $0.8 million in 1999 compared to ($0.03)
million in 1998.
The MISS MARQUETTE riverboat casino and entertainment facility has 698
machines and 36 table games and is located on the Mississippi River at
Marquette, Iowa. Revenue remained constant at $9.5 million in 1999, and direct
operating costs decreased 11% to $6.8 million in 1999 compared to $7.6 million
in 1998. As a result, operating profit increased 44% to $2.7 million in 1999
compared to $1.9
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million in 1998. As a condition of the pending acquisition of the Company by
IGT, the Company agreed to divest this operation.
RESULTS OF CONTINUING OPERATIONS - SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO
THE SIX MONTHS ENDED JUNE 30, 1998
Net earnings from continuing operations increased 18% to $6.9 million, or
$0.30 per share for the six months ended June 30, 1999, compared to $5.8
million, or $0.25 per share for the same period in 1998. The increase in
earnings was primarily due to increased product sales and decreased interest and
financing costs. Total revenue increased 21% to $45.8 million in 1999, compared
to $37.9 million in 1998. Total costs and expenses increased 22% to $35.2
million in 1999, compared to $28.9 million in 1998.
PRODUCT SALES
Revenue from product sales increased 35% to $34.6 million in 1999 compared
to $25.7 million in 1998. The increase was the result of a 29% increase in
machine sales to $25.6 million in 1999, compared to $19.8 million in 1998 and a
53% increase in ancillary product sales to $9.0 million in 1999 compared to $5.9
million in 1998.
New gaming machine shipments increased 30% to approximately 3,340 machines
in 1999 compared to 2,580 machines in 1998. Average revenue per new machine sold
during the six months ended June 30, 1999 increased to approximately $7,700,
compared to $7,500 in 1998, due in part to a increased percentage of enhanced,
higher-priced machines in the mix of machines sold.
In 1999, 75% of the new machine shipments were to casinos in Arizona, New
Mexico, North Carolina and Wisconsin. In 1998, 77% of the new machine shipments
were to casinos in Kansas, Michigan, Minnesota, New Mexico and Wisconsin. Growth
of gaming in Native American jurisdictions is outside the control of the Company
and is influenced by the legal, electoral and regulatory processes of those
jurisdictions.
The cost of product sales increased 34% to $26.2 million in 1999, from
$19.6 million in 1998 as a result of increased product sales volume. The gross
margin on product sales was 24.4% in 1999 compared to 24.0 % in 1998. The slight
increase in gross margin is primarily due to higher margins on ancillary product
sales.
The Company believes that its ability to provide products would be
unaffected by the pending acquisition of the Company by IGT.
WIDE AREA PROGRESSIVE SYSTEMS
Wide area progressive systems revenue increased 1% to $7.7 million in
1999, compared to $7.6 million in 1998. The increase was the result of an
increase in both the number of systems offered and the number of machines on
such systems. At June 30, 1999, 25 systems were in operation compared to 16
systems at June 30, 1998. During the six months ending June 30, 1999, four new
systems were introduced: ELVIS in a $1.00 denomination (one interstate and one
intrastate) and in a 25(cent) denomination AND SLOTopoly in a 25(cent)
denomination.
-13-
<PAGE>
The number of machines on the systems at June 30, 1999 increased to
approximately 2,250 from approximately 1,800 at June 30, 1998.
FINANCING INCOME
Financing income decreased 24% to $3.5 million in 1999, compared to $4.6
million in 1998. The decrease was primarily due to a lower outstanding balance
of interest-bearing receivables related to financed sales in 1999 compared to
1998, as well as, $0.8 million in financing fees recognized in 1998 for
arranging financing for casino projects. The Company recognized revenue of $0.8
million in both 1999 and 1998 as its share of Harrah's management fee from the
Harrah's Phoenix Ak-Chin casino.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses decreased 3% to $7.6 million
in 1999, from $7.8 million in 1998. As a percent of total revenue, selling,
general and administrative expenses decreased to 17% in 1999 compared to 21% in
1998.
DEPRECIATION AND AMORTIZATION
Depreciation and amortization increased 105% to $1.2 million in 1999,
compared to $.6 million in 1998. This increase was primarily attributable to a
Company-wide information system placed in service in the fourth quarter of 1998.
INTEREST AND FINANCING COSTS
Interest and financing costs decreased 82% to $0.2 million in 1999, from
$.9 million in 1998. The decrease in interest and financing costs was primarily
the result of increased cash flows from operations during the latter part of
1998 and into 1999, which in turn decreased 1999 borrowings to fund working
capital needs as compared to 1998.
INCOME FROM OPERATIONS
The cumulative effect of the above described changes resulted in an 18%
increase in income from operations to $10.6 million in 1999, compared to $9.0
million in 1998. As a percent of total revenue, income from operations decreased
to 23% in 1999 from 24% in 1998.
OTHER INCOME
Other income, which consists primarily of interest income, increased to
$0.2 million in 1999 from $0.06 million in 1998. The increases is primarily due
to the increase in cash and cash equivalents, which have been invested in short
term interest bearing securities.
PROVISION FOR INCOME TAXES
Provision for income taxes was $4.0 million in 1999 as compared to $3.3
million in 1998, representing 37% and 36% of earnings before income taxes in
1999 and 1998, respectively.
-14-
<PAGE>
DISCONTINUED OPERATIONS
GAMING OPERATIONS
As discussed on page 9, the Company plans to divest its gaming operations.
Income from discontinued operations increased to $1.8 million or $0.07 per share
for the six months ended June 30, 1999, compared to a loss of ($1.0) million or
($0.04) per share for the same period in 1998. See discussion on page 9 relating
to divestiture of gaming operations.
Gaming operations revenue decreased 38% to $17.4 million in 1999, from
$27.9 million in 1998. The decrease in gaming operations revenue is due to the
divestiture of international gaming operations in the last two quarters of 1998.
Gaming operations expenses decreased 50% to $13.7 million in 1999,
compared to $26.3 million in 1998. The decrease in gaming operations expenses is
due to the divestiture of international gaming operations in the last two
quarters of 1998.
Selling, general and administrative expenses from the discontinued
operations decreased 80% to $0.4 million in 1999, compared to $2.1 million in
1998. Interest expense from the discontinued operations decreased to $.5 million
in 1999 compared to $.8 million in 1998. Income tax expense from the
discontinued operations increased to $1.0 million in 1999 compared to ($0.3)
million in 1998.
The MISS MARQUETTE riverboat casino and entertainment facility has 698
machines and 36 table games and is located on the Mississippi River at
Marquette, Iowa. Although revenue decreased 1% to $17.4 million in 1999 compared
to $17.6 million in 1998, direct operating costs also decreased 10% to $13.1
million in 1999 compared to $14.6 million in 1998. As a result, operating profit
increased in 1999 compared to 1998. As a condition of the pending acquisition of
the Company by IGT, the Company agreed to divest this operation.
LOSS ON DISPOSAL OF JOINT VENTURE INTEREST
The loss on disposal of joint venture interest for the six months ended
June 30th, 1999, is comprised of ($0.4) million loss less $0.1 million income
tax benefit due to the sale of the Company's interest in a joint venture to
develop a Louisiana gaming riverboat complex.
LIQUIDITY AND CAPITAL RESOURCES
WORKING CAPITAL
Working capital increased $45.2 million to $80.0 million during the six
months ended June 30, 1999. The increase is attributable to an increase in
current assets of $45.0 million which is primarily related to the
reclassification of the Miss Marquette Riverboat assets to current assets, and a
decrease in current liabilities of $0.2 million.
CASH FLOWS
During the six months ended June 30, 1999, the Company's cash and cash
equivalents increased $17.1 million to $23.2 million. Cash provided by operating
activities was $18.0 million in 1999 compared to $16.9 million used in operating
activities in 1998. Significant items affecting 1999
-15-
<PAGE>
operating cash flows were net earnings, depreciation and amortization, loss on
sale of joint venture interest and changes in operating assets and liabilities.
Cash provided from investing activities amounted to $2.3 million in 1999
compared to ($8.0) million used in investing activities in 1998. Cash provided
by investing activities in 1999 consisted primarily of $3.1 million in payments
received on notes receivable from customer financing, partially offset by ($0.9)
million used to purchase property and equipment. Cash used in investing
activities in 1998 consisted primarily of $6.6 million advanced on notes
receivable for customer financing and ($4.6) million used to purchase property
and equipment. These 1998 uses were partially offset by $2.5 million in payments
received on notes receivable for customer financing and $0.5 million proceeds
from sale of property equipment and real estate. The property and equipment
purchases in 1999 were primarily for: 1) wide area progressive equipment placed
at customer casinos, 2) service vehicles and 3) gaming equipment at the MISS
MARQUETTE. The property and equipment purchases in 1998 were primarily
attributable to costs associated with the development of a new Company-wide
information system, and expenditures for gaming operations equipment at Miss
Marquette and in Peru.
Financing activities used $3.2 million in 1999 compared to $6.0 million
used in 1998. The 1999 uses resulted primarily from repayments of long-term debt
related to the MISS MARQUETTE. The cash used in financing activities in 1998
consisted of principal repayments on the revolving credit facility and other
long-term debt net of proceeds from borrowings on the Company's revolving credit
facility,
INDEBTEDNESS/LINES OF CREDIT
The Company's continuing operations had no long-term debt outstanding at
June 30, 1999. Net assets held for resale are net of long term debt of $ 5.4
million relating to the Miss Marquette riverboat gaming operation ( see
discussion at page 9).
The Company has a long-term revolving credit facility from a syndicate of
banks. The revolving line had a $20 million tranche (Tranche A) which matured on
March 31, 1999 and was not renewed at the election of the Company and a $30
million tranche (Tranche B) for acquisitions and major capital equipment
expenditures. The amount available under Tranche B is being reduced by $1.875
million quarterly since June 1997, and matures in February 2001. As a result,
the maximum credit amount under the revolving credit facility was $13.125
million at June 30, 1999. There were no borrowings or letters of credit
outstanding under the credit facility as of June 30, 1999. The unused portion of
the credit facility is subject to a commitment fee, based upon a calculation as
defined in the revolving credit agreement. Interest is payable at variable rates
which, at the Company's option, are based on the prime rate or a Eurodollar rate
plus an applicable margin. The revolving credit facility is secured by
substantially all Company assets, excluding real estate, but including a first
preferred ship mortgage on the MISS MARQUETTE riverboat.
CAPITAL COMMITMENTS
During 1994 the Company assisted a casino management company in acquiring
$8 million in financing from a financial institution. The Company also
guaranteed the debt. The loan guaranty agreement, as subsequently revised,
allows the casino management company to reborrow prepaid amounts, and at June
30, 1999 the maximum allowable loan balance was $3.0 million. In return for the
guaranty, the Company receives a loan guaranty fee based upon a percentage of
the outstanding loan
-16-
<PAGE>
balance, and additionally, a lesser percentage of the unused maximum allowable
loan balance. As of June 30, 1999 the outstanding loan balance was $1.0 million.
As a condition of the agreement to be acquired by IGT, the Company agreed
to divest its interest in this project. On March 31, 1999, the Company sold its
interest in the Louisiana joint venture to a subsidiary of Hollywood for $2.5
million, payable six months after the opening of the Louisiana complex. The
amount was discounted to reflect the present value of the transaction, resulting
in a pre-tax loss of $0.4 million.
IMPACT OF INFLATION
Inflation has not had a significant effect on the Company's operations
during the six months ended June 30, 1999.
YEAR 2000 COMPLIANCE
The Company has undertaken various initiatives to ensure that its computer
equipment and software will function properly with respect to dates prior to,
during, and after the Year 2000. Information technology (IT) systems impacted by
the Year 2000 issue include systems commonly thought of as IT systems, such as
accounting, data processing and telephone systems, as well as systems that are
not commonly thought of as IT systems, such as alarm systems, security systems,
fax machines, and other miscellaneous systems. Both IT and non-IT systems may
contain imbedded technology which compounds the inventory, risk assessment,
remediation, and testing efforts.
STATE OF READINESS
The Year 2000 readiness issue, which is common to most businesses, arises
from the inability of computer information systems with date sensitive processes
to properly recognize and accurately process date-sensitive information. If the
Company or its customers, suppliers, or other third parties fail to make
corrections for programs that have defined dates using a two-digit year, this
could result in system failure or malfunction of certain computer equipment,
software, and other devices dependent upon computerized mechanisms that are date
sensitive. This problem may cause disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities. Assessments of the potential cost
and effects of Year 2000 issues vary significantly among businesses, and it is
difficult to predict the actual impact. Recognizing this uncertainty, management
has commenced the following steps: a) established a Year 2000 project team; b)
implemented a plan that includes awareness, inventory, risk assessment,
remediation, contingency planning, and compliance maintenance phases; and c)
communicating with customers, vendors, and third party providers to ensure they
are addressing the Year 2000 issue.
The risk assessment, remediation, and contingency planning phases are
currently underway.
The Company is utilizing both internal and external resources to
accomplish its Year 2000 compliance plan, which began in November 1998 and is
expected to be substantially complete by the third quarter of 1999. Risk
management consultants have been engaged to review and assist Sodak in our Year
2000 compliance plans and efforts. The Company is also actively pursuing efforts
to ensure the readiness of our products and services.
-17-
<PAGE>
COSTS
The Company estimates that its direct costs for Year 2000 compliance will
consist primarily of costs related to the staff time devoted to Year 2000
compliance. The Company expects expenditures related to Year 2000 compliance to
approximate $0.2 million.
RISKS
The Year 2000 issue presents a number of other risks and uncertainties
that could impact Sodak operations. These include but are not limited to third
parties whose services the Company relies upon in order to produce and sell our
products, such as key suppliers, public utilities, telecommunication providers,
financial institutions, or certain regulators of the various jurisdictions where
Sodak does business, which could result in lost production, sales, or
administrative difficulties on the part of Sodak. The Company is corresponding
with these parties to determine their Year 2000 compliant status. Based on these
communications, contingency plans will be developed to allow Sodak to continue
business as normal.
The Company has identified the integrated Oracle Applications system and
the Native American Progressive Systems (NAPS) as critical business pieces that
would be substantially impacted by an inability to handle Year 2000 issues. The
Company believes that Year 2000 deficiencies will be remedied through computer
equipment and software replacement or modification in a timely fashion.
Oracle Applications was implemented on the Digital Alphaserver platform
with Compaq Tru64 (formerly known as Digital UNIX) in fiscal 1998 to replace
core-business information systems with an Enterprise Resource Planning (ERP)
software package. The Company has applied the operating system and database
upgrades to the Digital Alphaserver platform. The Oracle Applications Year 2000
compliance testing is complete and the appropriate patches have been applied to
the production instances.
The Company's NAPS are the proprietary systems of IGT. IGT is in the
process of upgrading all wide area progressive system software. The NAPS
software upgrade obtained regulatory approval in Native American jurisdictions
in March 1999. IGT implemented this upgrade to all NAPS jurisdictions in late
March 1999.
The Company is also surveying its key vendors and service providers to
determine the extent to which interfaces with such entities are vulnerable to
Year 2000 issues. Although the Company has developed a system of communicating
with vendors to understand their ability to continue providing services and
products through the Year 2000 without interruption, there can be no assurance
that the systems of other companies on which the Company may rely will be timely
converted or that such failure to convert by another company would not have an
adverse effect on the Company's systems.
The Company believes the implementation of the integrated Oracle
Applications system and completion of the Year 2000 project as scheduled will
significantly reduce the risk of significant operating problems. The majority of
our application systems have been tested and remediated. The Company will retest
key areas in Fall 1999 to ensure Year 2000 compliance is maintained. The Company
believes this timetable should allow enough time to fix or replace any business
critical problems discovered during the testing phase.
-18-
<PAGE>
CONTINGENCY PLANS
In those instances where completion by the end of 1999 is not assured,
appropriate contingency plans will be developed. The Year 2000 issue presents a
number of other risks and uncertainties that could impact the Company, including
but not limited to third parties whose services relied upon in order to produce
and sell our products, such as key suppliers and customers, public utilities,
telecommunication providers, financial institutions, or certain regulators of
the various jurisdictions where the Company does business, which could result in
lost production, sales, or administrative difficulties on the part of the
Company. While the Company continues to believe the Year 2000 issues will not
materially affect its consolidated financial position or results of operations,
it remains uncertain as to what extent, if any, the Company may be impacted.
MARKET RISK
The company has market risk relating to long-term debt and notes payable
to third parties and banks which bear interest at fixed and variable rates. The
following is a summary of the debt instruments:
Maturing in one to three Maturing in four to six
years years
- --------------------------------------------------------------------------------
Fixed rate debt (21%) $ 4,696 0
Fixed rate debt (8% to 9%) $ 283 382
- --------------------------------------------------------------------------------
The Company has market risk relating to short term and long term notes
receivable with customers which bear interest at fixed and variable rates. The
following is a summary of the notes receivable:
Maturing in one to three Maturing in four to six
years years
- --------------------------------------------------------------------------------
Fixed rate notes (8% to 14%) $ 24,653 4,378
Variable rate notes (prime +1% to prime +4%) $ 6,638 0
- --------------------------------------------------------------------------------
MARKET RISK MANAGEMENT
The company is exposed to market risk from changes in interest rates.
Changes in interest rates could cause fluctuations in the Company's earnings and
cash flows. The Company's risk to interest rate fluctuations has not materially
changed since December 31, 1998.
CAUTIONARY NOTICE
This report contains forward-looking statements reflecting the Company's
expectations or beliefs concerning future events which could materially affect
Company performance in the future. Terms indicating future expectation, optimism
about future potential, anticipated growth in revenue, earnings of the Company's
business lines and like expressions typically identify such statements. Actual
results and events may differ significantly from those discussed in
forward-looking statements.
All forward-looking statements are subject to the risks and uncertainties
inherent with predictions and forecasts. They are necessarily speculative
statements, and unforeseen factors, such as competitive pressures, changes in
regulatory structure, failure to gain the approval of regulatory authorities,
and changes in customer acceptance of gaming could cause results to differ
materially from any that may be expected.
-19-
<PAGE>
Forward-looking statements are made in the context of information
available as of the date stated. The Company undertakes no obligation to update
or revise such statements to reflect new circumstances or unanticipated events
as they occur.
-20-
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
On April 26, 1994, William Poulos filed a class action lawsuit in the
United States District Court for the Middle District of Florida, Case No.
94-478-CIV-ORL-22 (the Poulos case). The Complaint in the Poulos case alleges
violations of 18 U.S.C. ss. 1962(a), (c), and (d), the Racketeering Influenced
and Corrupt Organizations Act, and pendent state law claims. The approximately
41 named defendants in the Poulos case consist of the manufacturers and
distributors of electronic gaming devices, and companies who are parents and/or
affiliates of the entities which operate and/or provide the electronic gaming
devices for play by the public.
On May 10, 1994, William Ahearn filed a class action lawsuit in the United
States District Court for the Middle District of Florida, Case No.
94-532-CIV-ORL-22 (the Ahearn case). The named defendants and claims made in the
Poulos and Ahearn cases are virtually identical.
On September 30, 1994, the Poulus and Ahearn cases were consolidated. On
December 9, 1994, the Poulos and Ahearn cases were transferred to the United
States District Court for the District of Nevada pursuant to 28 U.S.C. ss.
1404(a). On November 29, 1994, William Poulos filed a second class action
lawsuit in the United States District Court for the Middle District of Florida,
Case No. 94-1259-CIV-ORL-22 (the Cruise Ship case). The allegations made in the
Cruise Ship case are virtually identical to the allegations in the Poulos and
Ahearn cases. The defendants in the Cruise Ship case consist of manufacturers
and distributors of electronic gaming devices, and the operators of cruise ships
and cruise ship casinos where the devices are exposed for play by passengers. On
September 14, 1995, the Cruise Ship case was transferred to the United States
District Court for the District of Nevada pursuant to 28 U.S.C. ss. 1404(a). On
September 26, 1995, Larry Schreier filed a class action lawsuit in the United
States District Court for the District of Nevada. Except for alleging a smaller
and more precisely defined class of plaintiffs, the Schreier case is virtually
identical to the Poulos and Ahearn cases. The Poulos, Ahearn, Schreier, and
Cruise Ship cases have been consolidated and assigned to visiting United States
District Court Judge David A. Ezra. Sodak is a named defendant in the Poulos,
Ahearn, and Schreier cases. The plaintiffs allege that the defendants actions
constitute violations of the Racketeer Influenced and Corrupt Organizations Act
(RICO) and give rise to claims of common law fraud and unjust enrichment. The
plaintiffs are seeking monetary damages in excess of $1 billion and are asking
that any damage awards be trebled under applicable federal law.
The Defendants argued a variety of motions to dismiss and also procedural
motions before the Court on November 3, 1997. The Court ruled on the same
issuing various Orders which were entered and served on December 19, 1997. The
most significant rulings were that the Court ordered Plaintiffs to file an
Amended Complaint by January 9, 1998, and the Plaintiffs wire fraud count
against Defendants was dismissed with prejudice (cannot be relitigated). On
March 19, 1998 the Court granted Defendant's Motion to Bifurcate Discovery and
to Stay Merits Discovery until the Court decides the Plaintiff's Motion for
Class Certification. Class certification proceedings continue.
Procedural and discovery issues are ongoing. The Company believes the
Consolidated action is without merit. The Company is vigorously pursuing all
legal defenses available to it and is participating in the defense through
counsel and the defendants steering committee created pursuant Court Order.
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<PAGE>
Item 2. Changes in Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
10.21 Stock Purchase Agreement among Sodak Gaming, Inc., Gamblers
Supply Management Company and Lady Luck Gaming Corporation
dated as of July 30, 1999.
b. Reports on Form 8-K
None.
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<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: August 11, 1999
SODAK GAMING, INC.
By: \s\ Clayton R. Trulson
------------------------------------
Clayton R. Trulson
Vice President of Finance
and Treasurer
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Page
- ------ ----
<S> <C> <C>
10.21 Stock Purchase Agreement among Sodak Gaming, Inc., Gamblers Supply Management 25
Company and Lady Luck Gaming Corporation dated as of July 30, 1999.
27 Financial Data Schedule (submitted with EDGAR filing only)
</TABLE>
-24-
EXHIBIT 10.21
STOCK PURCHASE AGREEMENT
AMONG
SODAK GAMING, INC.,
GAMBLERS SUPPLY MANAGEMENT COMPANY
AND
LADY LUCK GAMING CORPORATION
DATED AS OF
JULY 30, 1999
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<PAGE>
ARTICLE I
PURCHASE AND SALE OF THE SHARES
1.1 Purchase and Sale of the Shares........................................32
1.2 Consideration for the Shares...........................................32
1.3 Closing................................................................32
1.4 Post-Closing Adjustments...............................................33
1.5 Closing Balance Sheet..................................................33
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 Organization; Subsidiaries.............................................35
2.2 Authority; Enforceability..............................................35
2.3 Ownership of Capital Stock.............................................35
2.4 No Breach..............................................................35
2.5 Brokers................................................................36
2.6 Financial Statements; Liabilities......................................36
2.7 Consents...............................................................36
2.8 Actions and Proceedings................................................37
2.9 Taxes and Tax Returns..................................................37
2.10 Title to Property; Condition...........................................38
2.11 Intellectual Property..................................................38
2.12 Compliance with Legal Requirements; Permits............................38
2.13 Employment Matters.....................................................38
2.14 Environmental Matters..................................................39
2.15 Permits................................................................40
2.16 Contracts..............................................................40
2.17 Affiliate Transactions.................................................41
2.18 No Other Representations or Warranties.................................41
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<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 Organization; Authority and Enforceability.............................42
3.2 No Breach..............................................................42
3.3 Consents...............................................................42
3.4 Brokers................................................................43
3.5 Actions and Proceedings................................................43
3.6 Acquisition of Shares..................................................43
ARTICLE IV
COVENANTS OF SELLER
4.1 Conduct of Business....................................................43
4.2 Inspections............................................................45
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Further Actions........................................................45
5.2 Contribution of Assets; Cancellation of Obligations....................45
5.3 Certain Notifications..................................................45
5.4 Tax Matters............................................................46
5.5 Employee and Employee Benefit Matters..................................48
5.6 Press Releases, Public Announcements...................................49
5.7 Replacement of Barge...................................................49
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of Purchaser.......................50
6.2 Conditions Precedent to Obligations of Seller..........................50
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<PAGE>
ARTICLE VII
TERMINATION
7.1 Grounds for Termination................................................51
7.2 Termination Fees and Expenses..........................................52
ARTICLE VIII
MISCELLANEOUS
8.1 Survival of Representations and Warranties.............................53
8.2 Costs and Expenses.....................................................53
8.3 Notices................................................................53
8.4 Counterparts...........................................................54
8.5 Entire Agreement.......................................................54
8.6 Governing Law..........................................................54
8.7 No Third Party Rights; Assignment......................................54
8.8 Waivers and Amendments.................................................54
8.9 Interpretation.........................................................54
8.10 Agreement to Indemnify.................................................55
8.11 Conditions of Indemnification..........................................55
8.12 Amount of Indemnification..............................................56
-28-
<PAGE>
Index of Defined Terms
The following terms have the respective meanings specified in the
indicated Sections of the Agreement:
Term Agreement Section
---- -----------------
Affiliate 2.17
Agreement Recitals
Allocation Schedule 5.4(l)
Associate 2.17
Benefit Plans 2.13(b)
Claims 8.10(b)
Closing 1.3(a)
Closing Balance Sheet 1.5(a)
Closing Date 1.3(a)
Code 2.9(e)
Consent 2.7
Contracts 2.4(b)
Damages 8.10(a)
Environmental Laws 2.14
ERISA 2.13(b)
ERISA Affiliate 2.13(b)
Estimated Purchase Price 1.2
Expiration Date 8.1
Financial Statements 2.6(a)
GAAP 1.4
Governmental Authority 2.4(c)
Hazardous Materials 2.14
Heller 1.4
HSR Act 2.7
Indemnified Party 8.11(a)
Indemnifying Party 8.11
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<PAGE>
Independent Firm 1.5(b)
Iowa Commission 2.7
Judgments 2.4(c)
Laws 2.4(c)
Liability, Liabilities 2.6(b)
Liens 1.1
Master Lease Agreement 1.4
Material Adverse Effect 2.4
Merger Agreement Recitals
Miss Marquette Riverboat Recitals
Permits 2.4(b)
Permitted Encumbrances 2.10(a)
Post-Closing Adjustment 1.4
Proceeding(s) 2.8
Purchase Price 1.4
Purchaser Recitals
Purchaser Benefit Plans 5.5(a)
Purchaser Claims 8.10(a)
Purchaser Disclosure Schedule Article III
Purchaser Group 8.10(a)
Purchaser's Auditor 1.5(a)
Riverboat Complex Recitals
Seller Recitals
Seller Benefit Plans 5.5(c)
Seller Claims 8.10(b)
Seller Disclosure Schedule Article II
Seller Group 8.10(a)
Seller's Auditor 1.5(a)
Shares Recitals
Subject Company Recitals
Subject Company Agreements 2.16(a)
Subject Company Benefit Plans 2.13(b)
-30-
<PAGE>
>
Target Working Capital 1.4
Tax Package 5.4(g)
Tax Returns 2.9(a)
Taxes 2.9(a)
Working Capital 1.4
Working Capital Calculation Statement 1.5(a)
Working Capital Differential 1.5(e)
-31-
<PAGE>
STOCK PURCHASE AGREEMENT ("Agreement"), dated as of July 30,
1999, among SODAK GAMING, INC., a corporation organized under the laws of South
Dakota ("Seller"), GAMBLERS SUPPLY MANAGEMENT COMPANY, a corporation organized
under the laws of South Dakota (the "Subject Company"), and LADY LUCK GAMING
CORPORATION, a corporation organized under the laws of Delaware ("Purchaser").
WHEREAS, Seller is a party to a Merger Agreement, dated as of
March 10, 1999, among International Game Technology, SAC, Inc. and Seller (the
"Merger Agreement") which requires, as a condition precedent to the transactions
contemplated thereby, the sale by Seller of the Subject Company;
WHEREAS, Seller owns all of the outstanding capital stock of
the Subject Company (the "Shares");
WHEREAS, the Subject Company operates the Miss Marquette
riverboat casino (the "Miss Marquette Riverboat") together with all related
shore-based facilities, including without limitation, a barge, a motel, an
enclosed walkway, a parking lot, a restaurant, administrative offices and other
entertainment facilities (collectively with the Miss Marquette Riverboat, the
"Riverboat Complex") located on the Mississippi River in Marquette, Iowa;
WHEREAS, Seller currently owns the Miss Marquette Riverboat
and will contribute all of its interest in and title to the Miss Marquette
Riverboat to the Subject Company in connection with the transactions
contemplated hereby; and
WHEREAS, Seller desires to sell and Purchaser desires to
purchase the Shares.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants, agreements and undertakings contained or
referred to in this Agreement, the parties hereby agree as follows:
Article I
PURCHASE AND SALE OF THE SHARES
1.1 Purchase and Sale of the Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined in Section
1.3 below) Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, the Shares, free and clear of all liens, mortgages, charges, security
interests, burdens, encumbrances or other restrictions or limitations of any
nature whatsoever ("Liens") and together with all rights now and hereafter
attaching thereto.
1.2 Consideration for the Shares. The aggregate consideration to be
paid by Purchaser for the Shares shall be U.S. $41,667,000 (the "Estimated
Purchase Price"), plus or minus the Post-Closing Adjustment (as defined below),
if any. Such consideration shall be paid in the manner and at the times set
forth in Sections 1.3 and 1.4.
1.3 Closing.
(a) The closing of the transactions contemplated in this Agreement (the
"Closing") shall be held at 10:00 a.m. at the offices of Cadwalader, Wickersham
& Taft, 100 Maiden Lane, New York, New York on the second business day after
each of the conditions set forth in Article VI of this Agreement shall have been
fulfilled or waived in accordance herewith, or at such other time, date or place
as the parties hereto may agree. The date on which the Closing occurs is
referred to as the "Closing Date".
(b) At the Closing: (i) the parties shall exchange the documents
referred to in Article VI; (ii) Seller shall deliver to Purchaser certificates
for all of the Shares, duly endorsed for transfer or accompanied by duly
executed stock powers or stock transfer forms sufficient to convey to Purchaser
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good title to the Shares; (iii) Purchaser shall pay to Seller the Estimated
Purchase Price by wire transfer of immediately available funds to an account
identified by Seller to Purchaser in writing no later than two business days
prior to the Closing.
1.4 Post-Closing Adjustments. The Estimated Purchase Price is based on
the Subject Company having Working Capital (as defined below) of negative
$2,689,119 (the "Target Working Capital"). Any difference between the Target
Working Capital and the Working Capital shall be an adjustment to the Estimated
Purchase Price (the "Post-Closing Adjustment"). The "Purchase Price" shall be
the Estimated Purchase Price adjusted by the Post-Closing Adjustment, in the
following manner: in the event that the Working Capital is greater than the
Target Working Capital, the Purchase Price shall be equal to the Estimated
Purchase Price plus the Post-Closing Adjustment, and Purchaser shall pay the
amount of the Post-Closing Adjustment to Seller in cash, and in the event that
the Working Capital is less than the Target Working Capital, the Purchase Price
shall be equal to the Estimated Purchase Price minus the Post-Closing
Adjustment, and Seller shall pay the amount of the Post-Closing Adjustment to
Purchaser in cash, in each case in accordance with the provisions of Section 1.5
of this Agreement. Any such payments shall be made within two (2) business days
following agreement by Purchaser and Seller on the Working Capital Calculation
Statement (as defined in Section 1.5), in accordance with Section 1.5. "Working
Capital" shall mean the sum of (x) the Subject Company's working capital as of
the Closing Date determined in accordance with United States generally accepted
accounting principles ("GAAP"), plus (y) all amounts (including any prepayment
penalty), if any, paid or (to the extent accrued as a current liability as of
the Closing Date) payable to Heller Financial, Inc. ("Heller"), in accordance
with the provisions of the Master lease Agreement (the "Master Lease Agreement")
dated June 30, 1997 between Heller (as assignee of PDS Financial Corporation)
and the Subject Company.
1.5 Closing Balance Sheet.
(a) As soon as practicable following the Closing Date, Purchaser shall
cause to be prepared the balance sheet of the Subject Company as of the Closing
Date (the "Closing Balance Sheet"). Within fifteen (15) days following the
Closing Date, Purchaser shall deliver the Closing Balance Sheet to Seller,
accompanied by (i) a certificate of an executive officer of Purchaser to the
effect that (except with respect to adjustments required by this Agreement) the
Closing Balance Sheet has been prepared and presented consistent with GAAP,
applied on a consistent basis with the preparation of the Financial Statements
(as defined in Section 2.6), and fairly presents the financial position of the
Subject Company as of the Closing Date and (ii) a statement documenting the
calculation of the Working Capital ("Working Capital Calculation Statement").
The Closing Balance Sheet and Working Capital Calculation Statement shall be
audited by Arthur Andersen LLP, independent public accountants of Purchaser
("Purchaser's Auditor"), and reviewed by KPMG Peat Marwick LLP, independent
public accountants of Seller ("Seller's Auditor"), who will be afforded full
access to all books and records of the Subject Company and work papers used by
Purchaser's Auditor in its audit. Purchaser's Auditor will issue a report to
Purchaser and Seller within forty-five (45) days of the Closing Date concerning
their audit and stating that the Closing Balance Sheet has been prepared in
accordance with GAAP, it being understood that the report of Purchaser's Auditor
must be unqualified.
(b) Within fifteen (15) days following the date on which the report of
Purchaser's Auditor is delivered pursuant to Section 1.5(a), Seller shall give
notice to Purchaser as to whether or not Seller's Auditor concurs with
Purchaser's Auditor's report (such notice to contain Seller's Auditor's comments
and exceptions to the Closing Balance Sheet, if any). If Seller gives notice
that Seller's Auditor does not concur with Purchaser's Auditor's report and the
parties are unable to mutually resolve Seller's Auditor's exceptions within ten
(10) days following the date of such notice, then within twenty (20) days
following the date of such notice Purchaser and Purchaser's Auditor and Seller
and Seller's Auditor shall jointly select and retain an independent firm of
certified public accountants of national standing and reputation (the
"Independent Firm") for the purpose of resolving all remaining unresolved issues
with respect to the Closing Balance Sheet and the Working Capital Calculation
Statement. In the event that Seller and
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Seller's Auditor, on the one hand, and Purchaser and Purchaser's Auditor, on the
other hand, are unable to agree upon the firm to be selected as the Independent
Firm within such twenty (20) day period, then such selection shall be made by an
independent arbitrator agreed upon from a list of three arbitrators supplied, at
Purchaser's request, within five days after the expiration of the twenty-day
period, to Purchaser and Seller from the American Arbitration Association, and
the retention of the Independent Firm shall be made by Seller and Purchaser
within five (5) days after such list is supplied.
(c) Within ten (10) days following such retention of the Independent
Firm, Seller shall cause Seller's Auditor, and Purchaser shall cause Purchaser's
Auditor, to present to the Independent Firm the issue or issues that must be
resolved with respect to the Closing Balance Sheet and the calculation of the
Purchase Price.
(d) Seller and Purchaser shall use their best efforts to cause the
Independent Firm to render its decision as soon as is reasonably practicable,
including, without limitation, prompt compliance with all reasonable requests by
the Independent Firm for information, papers, books, records and the like;
provided that Seller and Purchaser agree that the purpose of retention of the
Independent Firm shall not include the conduct of its own independent audit of
the Closing Balance Sheet, but rather shall be limited to resolving the issues
presented to it and matters related thereto. All decisions of the Independent
Firm with respect to the Closing Balance Sheet and the Working Capital
Calculation Statement shall be final and binding upon both Seller and Purchaser.
(e) Purchaser and Seller shall bear all fees, costs, disbursements and
other expenses of their own respective auditor associated with performance of
their respective functions pursuant to this Section 1.5. For purposes of this
Agreement, payment of all fees, costs, disbursements and other expenses of the
Independent Firm which are incurred pursuant to this Section 1.5 shall be (i)
split evenly between Seller and Purchaser if the amount of Working Capital
arrived at by the Independent Firm is in the range that is greater than 25% of
the Working Capital Differential (as defined below) plus the Working Capital
determined by Purchaser's Auditor and less than the difference of the Working
Capital determined by Seller's Auditor minus 25% of the Working Capital
Differential, or (ii) by (A) Seller, if the amount of the Working Capital
arrived at by the Independent Firm is less than or equal to 25% of the Working
Capital Differential plus the Working Capital determined by Purchaser's Auditor,
or (B) Purchaser, if the amount of the Working Capital arrived at by the
Independent Firm is greater than or equal to the difference of the Working
Capital determined by Seller's Auditor minus 25% of the Working Capital
Differential. The "Working Capital Differential" shall mean the amount of the
Working Capital determined by Seller's Auditor less the amount of the Working
Capital determined by Purchaser's Auditor.
Article II
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth herein and in the disclosure schedule
delivered by Seller to Purchaser on or before the date of this Agreement (the
"Seller Disclosure Schedule"), which shall be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained in this Article
II and the disclosure in any paragraph of which shall qualify other paragraphs
in this Article II only to the extent that it is reasonably apparent from a
reading of such disclosure that it also qualifies or applies to such other
paragraphs, Seller represents and warrants to Purchaser that:
2.1 Organization; Subsidiaries. Each of Seller and the Subject Company
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. The Subject Company is duly
qualified, licensed or admitted to do business and is in good standing in those
jurisdictions specified on the Seller Disclosure Schedule, which are the only
jurisdictions in which the ownership, use or leasing of its assets and
properties (including, on the Closing Date, the Miss Marquette Riverboat), or
the conduct or nature of its business, makes such qualification, licensing or
admission necessary, except where a failure to be so qualified, licensed or
admitted would not have a
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Material Adverse Effect (as defined in Section 2.4 below). Prior to the
execution of this Agreement, Seller has delivered to Purchaser true and complete
copies of the articles of incorporation and by-laws, or other comparable charter
documents of the Subject Company, as in effect on the date hereof. The Subject
Company does not have any affiliates controlled by it directly or indirectly
through one or more intermediaries. The Subject Company does not own
beneficially, directly or indirectly, any equity securities or similar interests
of any corporation, association, joint-stock company, limited liability company,
business trust or unincorporated organization, or any interest in any
partnership or joint venture of any kind.
2.2 Authority; Enforceability. Each of Seller and the Subject Company
has the corporate power and authority to enter into this Agreement and to carry
out its respective obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions provided for hereby have been
duly authorized by the Board of Directors of each of Seller and the Subject
Company and no other corporate proceeding on the part of Seller or the Subject
Company is necessary to authorize the execution or delivery of this Agreement or
the consummation of any of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by each of Seller and the Subject Company
and, assuming due authorization, execution and delivery by Purchaser,
constitutes a legal, valid and binding obligation of each of Seller and the
Subject Company, enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or law).
2.3 Ownership of Capital Stock.
(a) The Shares constitute all of the outstanding shares of capital
stock of the Subject Company. All of the Shares are duly authorized, validly
issued, fully paid and nonassessable. Seller owns beneficially and of record all
of the Shares, free and clear of all Liens.
(b) There are not authorized or outstanding any subscriptions, options,
conversion rights, warrants or other agreements, securities or commitments of
any nature whatsoever (whether oral or written and whether firm or conditional)
obligating the Subject Company to issue, deliver or sell, or cause to be issued,
delivered or sold, any authorized or outstanding shares of the capital stock, or
any securities convertible into or exchangeable for shares of capital stock, of
the Subject Company or obligating the Subject Company to grant, extend or enter
into any such agreement or commitment.
2.4 No Breach. Neither the execution and delivery of this Agreement nor
the performance by Seller of its obligations hereunder nor the consummation of
the transactions provided for hereby does or will:
(a) conflict with or violate any provision of the certificate of
incorporation or bylaws of Seller or the Subject Company;
(b) violate, conflict with or result in the breach or termination of,
or constitute a default or event of default under the terms of, any contracts,
agreements, commitments, undertakings, leases, licenses, mortgages, bonds, notes
or other instruments ("Contracts") or any permits, authorizations, approvals,
registrations or licenses granted by or obtained from any governmental,
administrative or regulatory authority ("Permits") to which Seller or the
Subject Company is a party or by which either of them or any of their respective
properties or assets are bound; or
(c) constitute a violation by Seller or the Subject Company of any
laws, rules or regulations ("Laws") of any governmental, administrative or
regulatory authority ("Governmental Authority") or any judgments, orders,
rulings or awards ("Judgments") of any court, arbitrator or other judicial
authority or
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any Governmental Authority,
except in the case of (b) or (c) for any such matters that would not, either
individually or in the aggregate, have a material adverse effect on the
financial condition, business, assets or results of operations of the Subject
Company or on the ability of Seller to perform its obligations under this
Agreement (a "Material Adverse Effect").
2.5 Brokers. Other than Salomon Smith Barney Inc., whose fees and
expenses shall be paid by Seller, no person has acted directly or indirectly as
a broker, finder, consultant, intermediary or financial advisor for Seller or
the Subject Company in connection with the transactions contemplated hereby and
no person is entitled to any fee or commission or like payment from Seller or
the Subject Company in respect thereof based in any way on any agreement,
arrangement or understanding made by or on behalf of Seller or the Subject
Company.
2.6 Financial Statements; Liabilities.
(a) Seller has delivered to Purchaser copies of the audited financial
statements of the Subject Company at and for the years ended December 31, 1997
and 1998, together with the related schedules and notes (the "Financial
Statements"). The Financial Statements fairly present in conformity with GAAP,
applied on a consistent basis, the financial condition of the Subject Company at
the dates thereof and the results of its operations and changes in financial
condition for the periods then ended.
(b) As of December 31, 1998, the Subject Company did not have any
material liabilities or obligations of any nature required by GAAP to be
reflected in its financial statements (collectively, "Liabilities" and
individually, a "Liability"), that were not reflected or reserved against in the
audited balance sheet of the Subject Company for the year ended December 31,
1998 or disclosed or provided for in the notes thereto. Since December 31, 1998,
the Subject Company has not incurred any Liability except Liabilities that are
not material to the financial condition of the Subject Company.
(c) Since December 31, 1998, the Subject Company has conducted its
business only in the ordinary and usual course in substantially the same manner
as previously conducted, has not taken any of the actions described in
subparagraphs (e) through (q) of Section 4.1 of this Agreement and has not
undergone or suffered any change in its financial condition or results of
operations that are materially adverse to the Subject Company.
2.7 Consents. No consent, waiver, approval, authorization,
registration, license or declaration of or by, or filing with, any Governmental
Authority or any third party (a "Consent") is required to be made or obtained by
Seller or the Subject Company in connection with the execution and delivery of
this Agreement or the consummation of any of the transactions provided for
hereby, except for: (a) the filing with the Federal Trade Commission and the
Antitrust Division of the Department of Justice of a premerger notification and
report form by Seller under the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act"), (b) a determination that Purchaser is a suitable buyer by
the Iowa Racing and Gaming Commission (the "Iowa Commission") and its approval
of the sale of the Shares and (c) such other consents, approvals, orders,
authorizations registrations, declarations and filings the failure of which to
be obtained or made would not have a Material Adverse Effect.
2.8 Actions and Proceedings. There is no action, suit, claim or legal,
administrative, arbitration or other alternative dispute resolution proceeding
or investigation (each, a "Proceeding" and collectively, "Proceedings") pending
or, to the best knowledge of Seller, threatened that would reasonably be
expected to have a Material Adverse Effect. Prior to the execution of this
Agreement, Seller has made available to Purchaser true and correct copies of all
responses of counsel for Seller and the Subject Company to auditors' requests
for information delivered in connection with the Financial
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Statements (together with any updates provided by such counsel) regarding
proceedings pending or threatened against, relating to or affecting the Subject
Company or the Riverboat Complex.
2.9 Taxes and Tax Returns.
(a) Except for any matter that would not reasonably be expected to have
a Material Adverse Effect: (i) the Subject Company has filed on a timely basis
all returns and reports in respect of Taxes ("Tax Returns") for which the
Subject Company may be liable taking into account all validly obtained
extensions to file such Tax Returns and all such Tax Returns are true, complete
and correct in all material respects; (ii) all Taxes required to be paid by the
Subject Company that were due and payable prior to the date hereof have been
paid, and the most recent Financial Statements reflect adequate reserves in
accordance with GAAP for all Taxes accrued but not yet payable by the Subject
Company for all taxable periods and portions thereof through the date of such
Financial Statements; (iii) there are no pending or to the knowledge of Seller
threatened audits or investigations relating to Taxes for which the Subject
Company may become liable; and (iv) no deficiencies for any Taxes have been
assessed against the Subject Company. "Taxes" means all federal, state, local or
foreign income, gross receipts, transfer, windfall profits, severance, property,
production, sales, use, license, excise, franchise, employment, withholding,
alternative minimum tax or similar taxes of any kind imposed on the income,
properties or operations of the Subject Company, together with any interest,
additions or penalties with respect thereto and any interest in respect of such
additions or penalties.
(b) Except as set forth on the Seller Disclosure Schedule, there is no
contract or intercompany account system in existence under which the Subject
Company has an obligation to contribute to the payment of any portion of a Tax
determined on a consolidated or unitary basis with respect to the affiliated
group of corporations of which Seller is the parent.
(c) No material deficiency for any Taxes has been proposed, asserted or
assessed by any taxing authority against the Subject Company, which has not been
resolved or paid in full, other than as set forth in the Seller Disclosure
Schedule.
(d) There are no Liens for Taxes upon the assets of the Subject
Company, except for statutory Liens for current Taxes not yet due and payable.
(e) The Subject Company will not be required to include in a taxable
period ending after the Closing Date a material amount of taxable income that
accrued in a tax period beginning before the Closing Date but that was not
recognized in a tax period beginning before the Closing Date as a result of an
adjustment under Section 481 of the Internal Revenue Code of 1986, as amended
(the "Code").
(f) No power of attorney has been granted by or with respect to the
Subject Company with respect to any matter relating to Taxes.
(g) As of the date hereof, Seller and the Subject Company are members
of a consolidated group for U.S. federal income tax purposes.
(h) The Subject Company's aggregate Tax basis, as of June 30, 1999, in
all of its assets, which did not include the Miss Marquette Riverboat, was not
more than $25,500,000.
2.10 Title to Property; Condition.
(a) The Subject Company has or will have prior to the Closing: (i) with
respect to all material parcels of real property owned by the Subject Company,
good and valid title, (ii) with respect to all material parcels of real property
leased by the Subject Company, valid and subsisting leasehold estates, and (iii)
with respect to all material personalty owned by the Subject Company, including
at Closing the Miss Marquette Riverboat, good title, in each instance free and
clear of all Liens other than
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Permitted Encumbrances. "Permitted Encumbrances" means any Liens that (i) are
listed on the Seller Disclosure Schedule or (ii) would not reasonably be
expected to have a Material Adverse Effect. The Subject Company has made
available to Purchaser a copy or an accurate summary of the material terms of
all of its material real property and personal property leases.
(b) The Riverboat Complex is in a condition suitable for operation and
use thereof in the ordinary course of business as currently conducted.
2.11 Intellectual Property. To the knowledge of the Subject Company
except as would not reasonably be expected to have a Material Adverse Effect,
the Subject Company has the exclusive right to use the trademarks, service
marks, and trade names owned by the Subject Company or used by it in the conduct
of its business and the consummation of the transactions contemplated hereby
will not alter or impair any such rights.
2.12 Compliance with Legal Requirements; Permits.
(a) Except for instances of non-compliance that would not reasonably be
expected to have a Material Adverse Effect, the Subject Company is currently
conducting its businesses in compliance with all applicable Laws, Judgments and
Permits.
(b) Except for any Permit the failure of which to possess would not
reasonably be expected to have a Material Adverse Effect, the Subject Company
possesses all Permits necessary to conduct its operations as they are currently
being conducted and all such Permits are in full force and effect.
2.13 Employment Matters.
(a) The Seller Disclosure Schedule sets forth all current consulting,
employment and severance agreements of the Subject Company with any present or
former director, officer, employee or consultant, other than agreements
terminable by the Subject Company at will without material expense or liability
to the Subject Company (except for payments required by applicable Laws or in
accordance with customary severance practices of the Subject Company), including
any stock option, stock purchase, or other stock-based compensation plan or
arrangement under which directors, officers, employees or consultants may
acquire Shares or other capital stock of the Subject Company or any options,
warrants or other securities for or exchangeable or convertible into any of the
foregoing. None of the agreements disclosed on the Seller Disclosure Schedule
provides for payments in connection with any change in control of the Subject
Company.
(b) The Seller Disclosure Schedule sets forth a list of each material
"employee welfare benefit plan" (as defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) or material
"employee pension benefit plan" (as defined in Section 3(2) of ERISA)
maintained, sponsored, contributed to, or required to be contributed to, by the
Subject Company or by any entity or trade or business, whether or not
incorporated, which, with the Subject Company, constitutes a group described in
Sections 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate")
(collectively, the "Benefit Plans") and under which any present employee of the
Subject Company becomes entitled to benefits (the "Subject Company Benefit
Plans"). Each of the Subject Company Benefit Plans is in substantial compliance
with Laws, including ERISA and the Code, as applicable, other than any failures
to comply with Law that would not be expected to result in a Material Adverse
Effect. The Subject Company Benefit Plans are sponsored by Seller.
(c) Seller has made available to Purchaser copies of the plan document
evidencing the Subject Company Benefit Plans listed on Schedules 2.13(a) and
2.13(b) of the Seller Disclosure Schedule.
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(d) Each Subject Company Benefit Plan which is intended to be qualified
under Section 401(a) of the Code has received a favorable determination letter
from the Internal Revenue Service (or is the subject of a pending application
for such a determination).
(e) No "reportable event," as that term is defined in Section 4043(c)
of ERISA (for which the 30-day notice requirement to the Pension Benefit
Guaranty Corporation has not been waived) has occurred with respect to any
Benefit Plan that is subject to Title IV of ERISA that presents a risk of
material liability to any Governmental Authority or other person on the part of
the Subject Company.
(f) No Benefit Plan which covers any employees of the Subject Company
has an "accumulated funding deficiency" within the meaning of Section 412 of the
Code or Section 302 of ERISA. To the Subject Company's knowledge, no transaction
or event has occurred with respect to any Benefit Plan that could subject the
Subject Company to a tax under Chapter 43 of the Code or to a penalty under Part
5 of Subtitle B of Title I of ERISA.
(g) All contributions required to be made by the Subject Company and
its ERISA Affiliates to any Benefit Plan before the Closing Date have been or
will be timely made before the Closing Date. Neither the Subject Company nor any
of its ERISA Affiliates has failed to make any contribution or payment to any
Subject Company Benefit Plan that has resulted in the imposition of a lien or
the posting of a bond or other security under ERISA or the Code.
(h) The Subject Company neither maintains nor has any material
liability for retiree life insurance or retiree health plans which provide for
continuing benefits or coverage for any participant or his or her beneficiary
after such participant's termination of employment with the Subject Company and
where such participant was an employee of the Subject Company, other than as
required by Part 6 of Subtitle B of Title I of ERISA.
(i) No Subject Company Benefit Plan is a "multiemployer plan" within
the meaning of Section 4001(a)(3) of ERISA and the Subject Company has not
incurred, directly or indirectly, any liability to any multiemployer plan that
remains unsatisfied.
2.14 Environmental Matters. Except to the extent that any of the
following would not reasonably be expected to have a Material Adverse Effect, to
the knowledge of Seller: (a) the Subject Company and its operation of the Miss
Marquette Riverboat comply with all Laws, orders, permits, conditions,
requirements and agreements relating to (i) the protection of the environment,
(ii) human health or safety or (iii) the storage, treatment, disposal,
transportation or other handing of hazardous or toxic substances, petroleum and
its fractions, byproducts and derivatives, solid and hazardous wastes, asbestos,
polychlorinated biphenyls, pollutants or contaminants (collectively, "Hazardous
Materials") or (iv) protection of rivers and other water bodies (collectively,
"Environmental Laws," including without limitation, as amended, the federal Oil
Pollution Act of 1990, Clean Water Act, Rivers and Harbors Acts, Clean Air Act,
Comprehensive Environmental Response, Compensation and Liability Act, Solid
Waste Disposal Act, Resource Conservation and Recovery Act and related or
analogous state and local laws or other requirements and common law) and is in
compliance with all licenses, permits and other authorizations required under
any Environmental Law; (b) there is no claim pending or threatened against the
Subject Company, or relating to the Miss Marquette Riverboat, alleging liability
or noncompliance under any Environmental Law; and (c) there have not been any
releases on any property or facility now owned, leased or otherwise operated by
the Subject Company or on the Riverboat Complex of any Hazardous Materials in
such form or quantity as to make the Subject Company liable under any
Environmental Law.
2.15 Permits. The Seller Disclosure Schedule contains a true and
complete list of all Permits used in and material to the business or operations
of the Subject Company, setting forth the owner, the function and the expiration
and renewal date of each. Prior to the execution of this Agreement, Seller or
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the Subject Company has made available to Purchaser true and complete copies of
all such Permits. Except as disclosed on the Seller Disclosure Schedule:
(i) the Subject Company owns or validly holds all Permits that are
material to its business or operations;
(ii) each Permit listed on the Seller Disclosure Schedule is valid,
binding and in full force and effect; and
(iii) the Subject Company is not in default and has not received any
notice that it is in default (or with the lapse of time would be in
default), and, to Seller's knowledge, no event has occurred that with
notice (or with lapse of time) would cause the Subject Company to be in
default, under any such Permit.
2.16 Contracts. (a) As of the date of this Agreement, except as set
forth on the Seller Disclosure Schedule, the Subject Company and Seller are not,
with respect to the business and assets of the Subject Company, a party to or
bound by:
(i) any contract or option for the purchase or sale of real property;
(ii) any contract for the purchase of raw materials, supplies, services
or equipment which the Subject Company or Seller, respectively,
reasonably anticipates will involve the annual payment of more than
$100,000 after the date hereof;
(iii) any contract for the sale of products or services of its business
which the Subject or Seller, respectively, reasonably anticipates will
involve the annual payment of more than $100,000;
(iv) any consignment, distributor, dealer, manufacturer's
representative, sales agency, advertising representative or advertising
or public relations contract which the Subject Company or Seller
respectively, reasonably anticipates will involve the annual payment by
it of more than $100,000 after the date hereof;
(v) any agreement which provides for the incurrence by the Subject
Company or Seller, respectively, of debt for borrowed money in excess
of $10,000 including capitalized leases;
(vi) any agreement containing confidentiality obligations, or
competitive restraints on the ability of the Subject Company or Seller,
respectively, to purchase supplies, sell any products or services or
otherwise conduct its business;
(vii) any Tax sharing arrangement with any entity or person pursuant to
which Purchaser will have to make any payments based on the
transactions contemplated by this Agreement; or
(viii) any other contract, agreement, lease, commitment, understanding
or instrument which is material to the business of the Subject Company
((i)-(viii), collectively, the "Subject Company Agreements").
(b) Except as set forth on the Seller Disclosure Schedule, each of the
Subject Company Agreements constitutes a valid and binding obligation of the
Subject Company, enforceable in accordance with its terms (subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
application relating to or affecting creditors' rights and to general equity
principles). Except as set forth on the Seller Disclosure Schedule, the Subject
Company is not in breach or default
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under any of the Subject Company Agreements where the aggregate impact of all
such breaches and defaults would have a Material Adverse Effect on the Subject
Company. No condition exists or has occurred which, with the giving of notice or
lapse of time, or both, would constitute a default or accelerate the maturity
of, or otherwise modify, any of the Subject Company Agreements, and no default
by any other party to any of the Subject Company Agreements is known by the
Subject Company where the aggregate impact of all of such defaults or
modifications would have a Material Adverse Effect on the Subject Company. All
of the Subject Company Agreements are in full force and effect. Complete and
correct copies of each of the Subject Company Agreements have been made
available to Purchaser by Seller or the Subject Company.
2.17 Affiliate Transactions. Except as set forth on the Seller
Disclosure Schedule, as of the date of this Agreement, (i) there are no
intercompany liabilities between the Subject Company, on the one hand, and
Seller, any officer, director, Affiliate or Associate (each as defined below) of
Seller or any Associate of any such officer, director or Affiliate (other than
the Subject Company), on the other, (ii) neither Seller nor any such officer,
director, Affiliate or Associate provides or causes to be provided any assets,
services or facilities to the Subject Company, (iii) the Subject Company neither
provides nor causes to be provided any assets, services or facilities to Seller
or any such officer, director, Affiliate or Associate and (iv) the Subject
Company does not beneficially own, directly or indirectly, any investment assets
of Seller or of any such officer, director, Affiliate or Associate. Except as
set forth on the Seller Disclosure Schedule, each of the liabilities and
transactions listed thereon was incurred or engaged in, as the case may be, on
an arm's-length basis. Except as set forth on the Seller Disclosure Schedule,
since December 31, 1998, all settlements of intercompany liabilities between the
Subject Company, on the one hand, and Seller or any such officer, director,
Affiliate or Associate, on the other hand, have been made, and all allocations
of intercompany expenses have been applied, in the ordinary course of business
consistent with past practice.
For purposes of this Agreement, "Affiliate" shall mean, with
respect to any person, any other person controlling, controlled by or under
common control with such person, with "control" for such purpose meaning the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities or voting interests, by contract or otherwise.
For purposes of this Agreement, "Associate" shall mean, with respect to any
person, any corporation or other business organization of which such person is
an officer or partner or is the beneficial owner, directly or indirectly, of ten
percent (10%) or more of any class of equity securities, any trust or estate in
which such person has a substantial beneficial interest or as to which such
person serves as a trustee or in a similar capacity and any relative or spouse
of such person, or any relative of such spouse, who has the same home as such
person.
2.18 No Other Representations or Warranties. Except for the
representations and warranties of Seller expressly contained in this Agreement,
neither Seller, nor the Subject Company nor any other person acting for either
of them makes any other representation or warranty, express or implied, and
Seller hereby disclaims any such representation or warranty, with respect to the
execution, delivery or performance by Seller of this Agreement notwithstanding
the delivery or disclosure to Purchaser or any of its affiliates or any other
person of any documentation or other information by Seller or the Subject
Company or any of their respective representatives or any other person with
respect to any of such matters. Without limiting the generality of the
foregoing, Seller and the Subject Company disclaim any representations and
warranties that could be deemed to have been made in any of the information set
forth in the confidential memorandum furnished to Purchaser by Salomon Smith
Barney Inc., as financial advisor to Seller.
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Article III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as set forth herein and in the disclosure schedule
delivered by Purchaser to Seller on or before the date of this Agreement (the
"Purchaser Disclosure Schedule"), which shall be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained in this Article
III and the disclosure in any paragraph of which shall qualify other paragraphs
in this Article III only to the extent that it is reasonably apparent from a
reading of such disclosure that it also qualifies or applies to such other
paragraphs, Purchaser represents and warrants to Seller that:
3.1 Organization; Authority and Enforceability. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Purchaser has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions provided for hereby have been duly authorized by the Board of
Directors of Purchaser and no other corporate proceeding on the part of
Purchaser is necessary to authorize the execution or delivery of this Agreement
or the consummation of any of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Purchaser and, assuming due
authorization, execution and delivery by each of Seller and the Subject Company,
constitutes a legal, valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms.
3.2 No Breach. Neither the execution and delivery of this Agreement nor
the performance by Purchaser of its obligations hereunder nor the consummation
of the transactions provided for hereby does or will:
(a) conflict with or violate any provision of the certificate of
incorporation, bylaws or any other governing document of Purchaser;
(b) violate, conflict with or result in the breach or termination of,
or constitute a default, event of default (or an event which with notice, lapse
of time, or both, would constitute a default or event of default), under the
terms of, any Contracts or Permits to which Purchaser is a party or by which it
or any of its properties or assets are bound; or
(c) constitute a violation by Purchaser of any Laws or Judgments,
except in the case of (b) or (c) for any such matters that would not, either
individually or in the aggregate, have a material adverse effect on the ability
of Purchaser to perform its obligations under this Agreement.
3.3 Consents. No Consent is required to be made or obtained by
Purchaser in connection with the execution, delivery or enforceability of this
Agreement or the consummation of any of the transactions provided for hereby,
except for: (a) the filing with the Federal Trade Commission and the Antitrust
Division of the Department of Justice of a premerger notification and report
form by Purchaser under the HSR Act, (b) a determination that the Purchaser is a
suitable buyer by the Iowa Commission and its approval of the sale of the Shares
and (c) such other consents, approvals, orders, authorizations registrations,
declarations and filings the failure of which to be obtained or made would not
have a material adverse effect on the financial condition or results of
operations of Purchaser or impair in any material respect its ability to perform
its obligations under this Agreement.
3.4 Brokers. No person has acted directly or indirectly as a broker,
finder, consultant, intermediary or financial advisor for Purchaser in
connection with the transactions contemplated hereby and no person is entitled
to any fee or commission or like payment from Purchaser in respect thereof based
in any way on any agreement, arrangement or understanding made by or on behalf
of Purchaser.
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3.5 Actions and Proceedings. There is no Proceeding pending or, to the
knowledge of Purchaser, threatened against Purchaser or any of its affiliates
that questions the validity of this Agreement or any action taken or to be taken
by Purchaser in connection with, or which seeks to enjoin or obtain monetary
damages in respect of, the consummation of the transactions contemplated hereby,
or which would reasonably be expected to impair materially Purchaser's ability
to effect the Closing.
3.6 Acquisition of Shares. Purchaser acknowledges that the Shares have
not been registered under the Securities Act of 1933, as amended, or under any
state securities laws and represents that the Shares are being acquired by
Purchaser for its own account and not with a view to or in connection with any
disposition thereof in violation of the Securities Act of 1933, as amended, or
the rules and regulations thereunder, or any applicable state securities or
"blue sky" laws.
Article IV
COVENANTS OF SELLER
4.1 Conduct of Business. During the period from the date of this
Agreement to the Closing, except as specifically contemplated by this Agreement,
including the Seller Disclosure Schedule, or as otherwise consented to in
writing by Purchaser, Seller will, in the case of clauses (b)(iii), (k), (o),
(p) (with respect to clause (p), solely to the extent it relates to the Miss
Marquette Riverboat) and (q) (only to the extent it relates to such clauses (k),
(o) and (p)) and will in all events cause the Subject Company to:
(a) carry on its business only in the ordinary course in substantially
the same manner as heretofore conducted;
(b) use commercially reasonable efforts to (i) preserve intact the
present business organization and reputation of the Subject Company and the Miss
Marquette Riverboat, (ii) keep available (subject to dismissals, voluntary
departures and retirements in the ordinary course of business consistent with
past practice) the services of the present officers, employees and consultants
of the Subject Company, (iii) maintain the assets and properties of the Subject
Company and the Miss Marquette Riverboat in good working order and condition,
ordinary wear and tear excepted, (iv) maintain the goodwill of customers,
suppliers, lenders and other persons to whom the Subject Company sells goods or
provides services or with whom the Subject Company otherwise has significant
business relationships and (v) continue all current sales, marketing and
promotional activities relating to the business and operations of the Subject
Company;
(c) except to the extent required by applicable law, cause the books
and records of the Subject Company to be maintained in the usual, regular and
ordinary manner;
(d) (i) use commercially reasonable efforts to maintain in full force
and effect until the Closing substantially the same levels of coverage of
insurance on the Subject Company's properties and assets and the Miss Marquette
Riverboat as are currently in effect, and (ii) to the extent requested by
Purchaser prior to the Closing Date, use commercially reasonable efforts to
cause such insurance coverage held by any person (other than the Subject
Company) for the benefit of the Subject Company to continue to be provided at
the expense of the Subject Company for up to 180 calendar days after the Closing
on substantially the same terms and conditions as provided on the date of this
Agreement;
(e) not amend its certificate of incorporation or bylaws;
(f) not acquire, by merger, consolidation, purchase of stock or assets
or otherwise, any corporation, partnership, association or other business
organization, except in connection with Seller's contribution to the Subject
Company of the Miss Marquette Riverboat;
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(g) not alter its outstanding capital stock or declare, set aside, make
or pay any dividend or other distribution in respect of its capital stock (in
cash or otherwise), or purchase or redeem any shares of its capital stock;
(h) not issue or sell (or agree to issue or sell) any of its capital
stock or any options, warrants or other rights to purchase any such shares or
any securities convertible into or exchangeable for such shares;
(i) not incur, other than in the ordinary course of business consistent
with past practice and other than intercompany indebtedness, any indebtedness
for borrowed money (including through the issuance of debt securities) in excess
of $100,000 or vary in any material manner the terms of any material existing
indebtedness, except the liabilities to be assumed in connection with Seller's
contribution to the Subject Company of the Miss Marquette Riverboat;
(j) except to the extent required by applicable law, not permit any
material change in (A) any pricing, investment, accounting, financial reporting,
inventory, credit, allowance or tax practice or policy of the Subject Company,
(B) any method of calculating any bad debt, contingency or other reserve of the
Subject Company for accounting, financial reporting or tax purposes, (C) its
accounting procedures or practices unless mandated by GAAP or (D) the fiscal
year of the Subject Company;
(k) not make or change any Tax election, file any amended Tax Return,
change its Tax accounting period, adopt or change any method of Tax accounting,
enter into any closing agreement, compromise or settle any Tax claim or
assessment, surrender any right to claim a Tax refund, consent to any extension
or waiver of the limitations period applicable to any Tax claim or assessment,
or take or omit to take any other required action relating to Taxes without the
written consent of Purchaser, which shall not be unreasonably withheld;
(l) (i) not enter into, amend, modify, terminate (partially or
completely), grant any waiver under or give any consent with respect to (A) any
Subject Company Agreement that would, if in existence on the date of this
Agreement, be required to be disclosed on the Seller Disclosure Schedule, or (B)
any material Permit or Consent or (ii) not grant any irrevocable powers of
attorney;
(m) not violate, breach or default under in any material respect, or
take or fail to take any action that (with or without notice or lapse of time or
both) would constitute a material violation or breach of, or default under, any
term or provision of any Permit or Consent held or used by the Subject Company
or any Subject Company Agreement to which the Subject Company is a party or by
which any of its assets and properties, including, but not limited to, the Miss
Marquette Riverboat, is bound;
(n) not make capital expenditures or commitments for additions to
property, plant or equipment constituting capital assets in an aggregate amount
exceeding the Subject Company's annual budget (less any amount spent during this
fiscal year prior to the date of this Agreement), a copy of which is included in
the Seller Disclosure Schedule;
(o) not dispose of, or incur any Lien (other than a Permitted
Encumbrance) on, any assets and properties of the Subject Company and the Miss
Marquette Riverboat, other than in the ordinary course of business consistent
with past practice;
(p) not write off or write down any of its assets and properties,
including, but not limited to, the Miss Marquette Riverboat, outside the
ordinary course of business consistent with past practice; or
(q) not agree to take any of the actions set forth in the foregoing
subparagraphs (e) through (p).
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4.2 Inspections. During the period from the date of this Agreement to
the Closing, Seller shall permit Purchaser and its representatives full access
to the books, records, facilities, properties, assets and operations of the
Subject Company; provided that such access shall not interfere with the normal
business and operations of the Subject Company. Seller shall arrange for
Purchaser and its representatives to discuss with appropriate officers,
employees and representatives of the Subject Company such matters related to the
transactions provided for herein as Purchaser may reasonably request.
Article V
ADDITIONAL AGREEMENTS
5.1 Further Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under all applicable Laws to consummate and make
effective the transactions contemplated by this Agreement. Subject to the terms
and conditions herein provided, Seller and Purchaser will, and will cause each
of their respective affiliates to, (a) use their best efforts to obtain all
Consents or Permits necessary or advisable to consummate and make effective the
transactions contemplated by this Agreement, including without limitation the
Consents required from the Iowa Commission and the expiration of the waiting
period under the HSR Act, and (b) use their commercially reasonable efforts to
cause each of the conditions precedent to their respective obligations provided
for in Article VI to be satisfied, including obtaining the financing necessary
to consummate the transactions contemplated by this Agreement. In case at any
time after the Closing any further action is necessary or desirable to carry out
the purposes of this Agreement, the proper officers or directors of Seller, the
Subject Company or Purchaser, as the case may be, shall take all such necessary
action.
5.2 Contribution of Assets; Cancellation of Obligations.
(a) As soon as practicable following the execution of this Agreement,
and in any case prior to the Closing Date, Seller shall contribute, assign, set
over and transfer to the Subject Company, all of Seller's interest in and title
to the Miss Marquette Riverboat.
(b) In connection with the contribution of the Miss Marquette
Riverboat, the Subject Company shall assume all of the liabilities related to or
encumbering the Miss Marquette Riverboat, which are set forth on the Seller
Disclosure Schedule.
(c) As of the Closing Date, all amounts or payments due to Seller from
the Subject Company as of the Closing Date shall have been canceled and be of no
further force and effect and, in addition, shall have been eliminated from the
balance sheet of the Subject Company.
5.3 Certain Notifications. At all times prior to the Closing Date, each
party shall promptly notify the others in writing of the occurrence of any event
which will or may result in the failure of any of the conditions contained in
Article VI to be satisfied.
5.4 Tax Matters.
(a) Seller Liability for Taxes. Seller shall be liable for and
indemnify Purchaser for all Taxes imposed on the Subject Company (i) for any
taxable year or period that ends on or before the Closing Date and, with respect
to any taxable year or period beginning before and ending after the Closing
Date, the portion of such taxable year ending on and including the Closing Date,
(ii) under Section 1.1502-6 of the Treasury regulations issued under the Code as
a result of the Subject Company being a member of any consolidated group on or
before the Closing Date, (iii) all income Taxes resulting from the election
under Section 338(h)(10) of the Code (and any comparable election under state or
local law) contemplated by Section 5.4(l), if applicable and (iv) resulting from
the contribution of the Miss Marquette Riverboat to the Subject Company as
contemplated by Section 5.2; provided, however, that
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Seller shall not be liable for the Taxes described in Section 5.4(b)(ii) below.
Seller shall be entitled to any refund of Taxes of the Subject Company received
for such periods.
(b) Purchaser Liability for Taxes. Purchaser shall be liable for and
indemnify Seller for the Taxes of the Subject Company other than those described
in Section 5.4(a) for (i) any taxable year or period that begins after the
Closing Date and (ii) with respect to any taxable year or period beginning
before and ending after the Closing Date, the portion of such taxable year
beginning after the Closing Date. Purchaser shall be entitled to any refund of
Taxes of the Subject Company received for such periods.
(c) Short Taxable Year. For purposes of Sections 5.4(a) and (b),
whenever it is necessary to determine the liability for Taxes of the Subject
Company for a portion of a taxable year or period that begins before and ends
after the Closing Date, the determination of the Taxes of the Subject Company
for the portion of the year or period ending on, and the portion of the year or
period beginning after, the Closing Date shall be determined by assuming that
the Subject Company had a taxable year or period which ended at the close of
business on the Closing Date, except that real, personal and intangible property
Taxes and exemptions, allowances or deductions that are calculated on an annual
basis, such as the deduction for depreciation, shall be apportioned on a time
basis.
(d) Adjustment to Purchase Price. Any payment by Purchaser or Seller
under this Section 5.4 or Section 8.10 shall be treated as an adjustment to the
Purchase Price.
(e) Tax Returns. Seller shall file or cause to be filed when due all
Tax Returns that are required to be filed by or with respect to the Subject
Company for taxable years or periods ending on or before the Closing Date and
shall timely pay any Taxes due in respect of such Tax Returns; provided,
however, that unless, at Purchaser's option, Seller and Purchaser make an
election under Section 338(h)(10) of the Code, (i) at least 30 days prior to the
due date for filing any such Tax Return (taking into account any applicable
extensions), Seller shall furnish Purchaser with a completed copy of any such
Tax Returns for Purchaser's review and comment and (ii) no such Tax Returns
shall be filed with any taxing authority without Purchaser's prior written
consent, such consent not to be unreasonably withheld. Any such Tax Return
described in the preceding sentence shall be prepared on a basis consistent with
the past practices of the Subject Company and in a manner that does not distort
taxable income (e.g., by deferring income or accelerating deductions). Purchaser
shall file or cause to be filed when due all Tax Returns that are required to be
filed by or with respect to the Subject Company for taxable years or periods
including but not ending on the Closing Date; provided, however, that to the
extent Seller is liable in all or part for the Taxes shown on such Tax Returns,
(i) at least 30 days prior to the due date for filing any such Tax Return
(taking into account any applicable extensions), Purchaser shall furnish Seller
with a completed copy of any such Tax Returns for Seller's review and comment
and (ii) no such Tax Returns shall be filed with any taxing authority without
Seller's prior written consent, such consent not to be unreasonably withheld.
Any such Tax Return described in the preceding sentence shall be prepared on a
basis consistent with the past practices of the Subject Company and in a manner
that does not distort taxable income (e.g., by deferring income or accelerating
deductions). Purchaser shall file or cause to be filed when due all Tax Returns
that are required to be filed by or with respect to the Subject Company for
taxable years or periods ending after the Closing Date and shall remit any Taxes
due in respect of such Tax Returns. Seller shall pay to Purchaser the Taxes for
which Seller is liable pursuant to Section 5.4(a) but which are payable with
respect to Tax Returns to be filed by Purchaser pursuant to the previous
sentence within ten days prior to the due date for the filing of such Tax
Returns. All Tax Returns including the Closing Date shall be filed on the basis
that the relevant taxable period ended on and included the Closing Date, unless
the relevant taxing authority will not accept a Tax Return filed on such a
basis.
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(f) Contests. Purchaser shall promptly notify Seller in writing upon
receipt by Purchaser or the Subject Company of notice of any pending or
threatened federal, state, local or foreign income or franchise tax audits or
assessments which may materially affect the tax liabilities of the Subject
Company for which Seller would be required to indemnify Purchaser pursuant to
Section 5.4(a). Seller shall have the sole right to represent the Subject
Company's interests in any tax audit or administrative or court proceeding
relating to taxable periods ending on or before the Closing Date, and to employ
counsel of its choice at its own expense. Seller shall not be entitled to
settle, either administratively or after the commencement of litigation, any
claim for Taxes that would materially adversely affect the liability for Taxes
of Purchaser or the Subject Company for any period after the Closing Date
without the prior written consent of Purchaser; provided that such consent shall
not be unreasonably withheld or delayed and shall not be necessary to the extent
that Seller has indemnified Purchaser against the effect of any such settlement.
Seller shall be entitled to participate, at its own expense,
in the defense of any claim for Taxes for a year or period that includes and
ends after the Closing Date that may be the subject of indemnification by Seller
pursuant to Section 5.4(a) and, with the written consent of Purchaser (which
shall not be unreasonably withheld or delayed), and at its sole expense, may
assume the entire defense of such tax claim. Neither Purchaser nor the Subject
Company may agree to settle any Tax claim for the portion of the year or period
ending prior to or on the Closing Date which may be the subject of
indemnification by Seller under Section 5.4(a) without the prior written consent
of Seller; provided that such consent shall not be unreasonably withheld or
delayed.
(g) Information to be Provided by Purchaser. With respect to the 1999
taxable period of the Subject Company ending on or prior to the Closing Date,
Purchaser shall cause the Subject Company to prepare and provide to Seller (i)
within 60 days of the Closing Date, a package of Tax information materials,
which shall include the materials necessary for Seller to prepare any income Tax
Return to be filed by Seller pursuant to Section 5.4(e) and (ii) no less than 15
days prior to the due date, excluding any extensions, of any other Tax Return to
be filed by Seller pursuant to Section 5.4(e), a package of Tax information
materials, which shall include the materials necessary for Seller to prepare
such other Tax Return (the packages described in (i) and (ii), collectively, the
"Tax Package"). To the extent practicable, the Tax Package shall be completed in
accordance with past practice including past practice as to providing the
information, schedules and work papers and method of computation of separate
taxable income or other relevant measure of income of the Subject Company.
(h) Assistance and Cooperation. After the Closing Date, each of Seller
and Purchaser shall:
(1) assist (and cause their respective affiliates to assist)
the other party in preparing any Tax Returns or reports which such
other party is responsible for preparing and filing in accordance with
this Section 5.4;
(2) cooperate fully in preparing for any audits of, or
disputes with taxing authorities regarding, any Tax Returns of the
Subject Company;
(3) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating
to Taxes of the Subject Company;
(4) provide timely notice to the other in writing of any
pending or threatened tax audits or assessments of the Subject Company
for taxable periods for which the other may have a liability under this
Section 5.4; and
(5) furnish the other with copies of all correspondence
received from any taxing authority in connection with any tax audit or
information request with respect to any such taxable period.
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(i) Transfer Taxes. All Taxes in the nature of excise, sales, use,
value added, transfer (including real property transfer or gains), stamp,
documentary, filing, recordation and any other similar taxes (and any Taxes
relating to such Taxes) that may be imposed, assessed or determined to be due as
a result of the transfer of the Shares and the Miss Marquette Riverboat as
contemplated by this Agreement will be borne by Seller.
(j) Allocation. Seller and Purchaser agree to allocate the Purchase
Price between the Miss Marquette Riverboat and the Shares, for tax purposes, in
accordance with the Seller Disclosure Schedule.
(k) Tax Sharing Agreements. Seller shall cause the provisions of any
Tax sharing agreement between Seller or any of its affiliates (other than the
Subject Company) and the Subject Company to be terminated on or before the
Closing Date. After the Closing Date, no party shall have any rights or
obligations under any such Tax sharing agreement.
(l) Section 338(h)(10) Election. At Purchaser's option, Seller shall
make a joint election with Purchaser under Section 338(h)(10) of the Code, and
any corresponding elections permitted under state or local law, with respect to
the purchase of the Shares, provided, however, that the Purchaser must notify
Seller if it wishes to make such an election or elections no later than 45 days
after the Closing Date. Seller and Purchaser shall, not later than 30 days prior
to the filing date, exchange completed and executed copies of the Internal
Revenue Service Form 8023, required schedules thereto, and any similar state and
local forms. Seller shall prepare an allocation schedule (the "Allocation
Schedule") allocating the portion of the Purchase Price allocated to the Shares
and the liabilities of the Subject Company among the assets of the Subject
Company in accordance with Section 338 of the Code and the regulations issued
thereunder, and shall submit such Allocation Schedule to Purchaser for its
review and signature no later than 30 days prior to the filing date. Seller
shall consult with the Purchaser as it prepares the Allocation Schedule.
Purchaser will notify Seller in writing within 10 days of delivery of
the Allocation Schedule if it does not agree with the Allocation Schedule. Any
disputed items not resolved between the parties within 5 days shall be resolved
by an independent accountant or accounting firm reasonably acceptable to both
Seller and Purchaser, whose determination shall bind all parties. Each party
shall bear 50% of the cost of such independent accountant or accounting firm.
Each of Seller, Purchaser and the Subject Company will file all Tax Returns and
reports in a manner consistent with the Allocation Schedule and will not take
any position for purposes of any Taxes respecting the allocation of the Purchase
Price and the liabilities of the Subject Company which is inconsistent with the
Allocation Schedule.
5.5 Employee and Employee Benefit Matters.
(a) From and after the Closing Date, Purchaser shall cause all of the
employees of the Subject Company to be eligible for and to participate in such
employee compensation and benefit plans, programs, policies and arrangements
that are made available by Purchaser and its subsidiaries to their own employees
who are similarly situated (the "Purchaser Benefit Plans"). From and after the
Closing Date, the Subject Company shall cause all of the Purchaser Benefit Plans
to provide that (i) all service of the Subject Company's officers and employees
completed prior to the Closing Date with Seller or the Subject Company will be
recognized under such Purchaser Benefit Plan as if it were service with
Purchaser for purposes of eligibility to participate in Purchaser Benefit Plans
and vesting of benefits thereunder, (ii) any waiting or eligibility periods or
exclusions for pre-existing conditions shall be waived with respect to such
officers and employees and their eligible dependents under Purchaser Benefit
Plans that are "welfare benefit plans" (as defined in section 3(1) of ERISA) and
(iii) all co-payments, deductibles and similar amounts and costs incurred by any
such officer or employee under a comparable plan, agreement or arrangement of
Seller or the Subject Company during the plan year in which the Closing occurs
shall be recognized under the applicable Purchaser Benefit Plan. The foregoing
shall not constitute any commitment, contract, understanding, undertaking or
guarantee (express or implied) on the
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part of Purchaser to maintain or establish any Purchaser Benefit Plan or on the
part of the Purchaser or the Subject Company to continue the employment of any
employee of the Subject Company for any duration.
(b) From and after the Closing, Purchaser shall cause the Subject
Company to honor, pay and perform all of its covenants and obligations under,
and in accordance with the existing terms of, all employment, severance,
termination and similar agreements identified in Schedule 2.13 of the Seller
Disclosure Schedule between the Subject Company and any officer, director or
employee thereof.
(c) Effective as of the Closing Date, the participation of all
directors, officers and employees of the Subject Company in the compensation and
benefit plans, programs, policies and arrangements of Seller (the "Seller
Benefit Plans") shall cease and the Subject Company shall execute and deliver
such resolutions of its Board of Directors and other documents as Seller deems
reasonably necessary or appropriate for the Subject Company to withdraw as a
participating employer in the Seller Benefit Plans. Seller shall remain
responsible and liable for payment of all medical, dental, vision and other
health claims incurred by any Subject Company employee prior to the Closing Date
under a Seller Benefit Plan. Purchaser (or the applicable Purchaser Benefit
Plans) shall be responsible for all covered medical, dental, vision and health
claims incurred by any Subject Company employee on or after the Closing Date.
For purposes of this paragraph (c), a claim is deemed to have been incurred when
the medical or other service giving rise to the claim is performed.
5.6 Press Releases, Public Announcements. Purchaser and Seller will
consult with each other as to the form, substance and timing of the initial
public disclosure of matters related to this Agreement, or any of the
transactions contemplated hereby, and no public disclosure will be made by one
without the consent of the other, which consent will not be unreasonably
withheld or delayed; provided that each of Purchaser and Seller may make such
disclosures as are necessary to comply with any requirement of law after making
good faith efforts under the circumstances to consult in advance with the other.
5.7 Replacement of Barge. Purchaser shall advise Seller as soon as
practicable following execution of this Agreement as to its desire in respect of
the replacement of the office riverboat access barge and shall, if an order
shall be placed for such replacement barge prior to the Closing, place such an
order at its expense.
Article VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of Purchaser. The obligations
of Purchaser to purchase the Shares at the Closing are subject to the
satisfaction at or prior to the Closing of each of the following conditions
(unless satisfaction of any such condition is expressly waived by Purchaser):
(a) The representations and warranties of Seller contained in Article
II shall be accurate in all material respects as of the date hereof and as of
the Closing Date as though restated on and as of such date (except in the case
of any representation or warranty that by its terms is made as of a date
specified therein, which shall be accurate in all material respects as of such
date);
(b) Seller shall have performed and complied with, in all material
respects, all agreements required by this Agreement to be performed or complied
with by it prior to or at the Closing;
(c) No Proceeding by any Governmental Authority shall be pending which
seeks to prohibit or declare illegal the transactions contemplated by this
Agreement and no Law or Judgment shall be in effect having any such result;
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<PAGE>
(d) All Consents and Permits the granting of which is required for the
consummation of the transactions contemplated by this Agreement, including
without limitation the Consent of the Iowa Commission and any Permits or
Consents for officers and directors of Purchaser from the Iowa Commission, shall
have been obtained and all waiting periods specified under applicable Laws and
all extensions thereof, the passing of which is necessary for such consummation,
including without limitation, the waiting period under the HSR Act, shall have
expired or been terminated;
(e) Seller shall have contributed to the Subject Company all of
Seller's interest in and title to the Miss Marquette Riverboat, in accordance
with the provisions of Section 5.2;
(f) Seller shall have delivered certificates for the Shares duly
endorsed for transfer or accompanied by duly executed stock powers or stock
transfer forms sufficient to convey to Purchaser good title to the Shares;
(g) Purchaser shall have received from Seller a certificate, signed by
an appropriate officer of Seller, as to the satisfaction of the conditions set
forth in paragraphs (a) and (b) of this Section 6.1;
(h) Purchaser shall have completed the refinancing of its first
mortgage notes on terms reasonably acceptable to Purchaser and such refinancing
shall provide funds, after giving effect to the other uses of proceeds thereof,
that will, according to the reasonable judgment of Purchaser, be in an amount at
least equal to the Estimated Purchase Price; and
(i) From and including the date hereof until the Closing Date, there
shall not have occurred any event, change, circumstance, condition or effect
that shall have caused a Material Adverse Effect with respect to the Subject
Company or the Miss Marquette Riverboat.
6.2 Conditions Precedent to Obligations of Seller. The obligations of
Seller to sell the Shares at the Closing are subject to the satisfaction at or
prior to the Closing of each of the following conditions (unless satisfaction of
any such condition is expressly waived by Seller);
(a) The representations and warranties of Purchaser contained in
Article III shall be accurate in all material respects as of the date hereof and
as of the Closing Date as though restated on and as of such date (except in the
case of any representation or warranty that by its terms is made as of a date
specified therein, which shall be accurate in all material respects as of such
date);
(b) Purchaser shall have performed and complied with, in all material
respects, all agreements required by this Agreement to be performed or complied
with by it prior to or at the Closing;
(c) No Proceeding by any Governmental Authority shall be pending which
seeks to prohibit or declare illegal the transactions contemplated by this
Agreement and no Law or Judgment shall be in effect having any such result;
(d) All Consents the granting of which is required for the consummation
of the transactions contemplated by this Agreement, including without limitation
(i) the Consent of the Iowa Commission and (ii) the Consent of Heller pursuant
to the Master Lease Agreement to the change of control effected by the
transactions contemplated by this Agreement, shall have been obtained and all
waiting periods specified under applicable Laws and all extensions thereof, the
passing of which is necessary for such consummation, including without
limitation, the waiting period under HSR Act, shall have expired or been
terminated;
(e) Purchaser shall have delivered the Estimated Purchase Price to
Seller as provided in Section 1.3;
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<PAGE>
(f) All of the conditions to the closing of the merger contemplated by
the Merger Agreement shall have been satisfied or waived;
(g) The Miss Marquette Riverboat shall have been released from the
first preferred ship mortgage which secures amounts due pursuant to the Amended
and Restated Credit Agreement among Seller, Comerica Bank Midwest, as agent, and
certain syndicate banks dated February 2, 1996;
(h) Heller shall have released Seller from its guarantee of the Subject
Company's obligations under the Master Lease Agreement; and
(i) Seller shall have received from Purchaser a certificate, signed by
an appropriate officer of Purchaser, as to the satisfaction of the conditions
set forth in paragraphs (a) and (b) of this Section 6.2.
Article VII
TERMINATION
7.1 Grounds for Termination. This Agreement may be terminated at any
time prior to the Closing Date:
(a) By the written agreement of each of Purchaser and Seller;
(b) By Seller if it shall have determined in good faith that one or
more of the conditions set forth in Section 6.2 cannot be fulfilled as a result
of an occurrence or event beyond the control of Seller;
(c) By Seller if the Merger Agreement shall have been terminated;
(d) By Purchaser if it shall have determined in good faith that one or
more of the conditions set forth in Section 6.1 cannot be fulfilled as a result
of an occurrence or event beyond the control of Purchaser;
(e) By either Purchaser or Seller if any permanent injunction or
Proceeding by any governmental agency of competent jurisdiction enjoining,
denying approval of or otherwise prohibiting consummation of any of the
transactions contemplated by the Agreement becomes final and nonappealable; or
(f) By either Purchaser or Seller if the Closing shall not have
occurred on or prior to September 30, 1999; provided, however, that Seller may
unilaterally cause this date to be extended to December 31, 1999, or to March
31, 2000 if the date for termination of the Merger Agreement shall have been
similarly extended pursuant to Section 7.1(e) of the Merger Agreement; provided
further, however, that Purchaser may unilaterally cause this date to be extended
from September 30, 1999 to October 31, 1999, but, if Purchaser does so, Seller
may, at such time, undertake to seek an alternative purchaser for the Shares
and, notwithstanding any provision to the contrary contained in Sections 4.1(a),
(h), (l), (o) and (q) and 5.6, may take any and all actions necessary, proper or
advisable in connection with such alternative transaction, including, without
limitation, the execution of a definitive agreement with respect thereto that is
conditioned upon a termination of this Agreement, other than the actual
consummation of such alternative transaction prior to the termination of this
Agreement, it being agreed and acknowledged that such actions taken by Seller
shall not constitute a breach of Section 5.1. Seller shall make good faith
efforts to consult with Purchaser prior to making any press release or other
public disclosure relating to an alternative transaction.
7.2 Termination Fees and Expenses.
(a) If this Agreement is terminated because:
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<PAGE>
(i) the representations and warranties of Purchaser contained
in Article III were not or are not accurate in all material respects as
of the date hereof and as of the Closing Date as though restated on and
as of such date (except in the case of any representation or warranty
that by its terms is made as of a date specified therein, which shall
be accurate in all material respects as of such date);
(ii) Purchaser shall have failed to perform and comply with,
in all material respects, all agreements required by this Agreement to
be performed or complied with by it prior to or at the Closing; or
(iii) Purchaser shall not have obtained the financing required
to satisfy the condition set forth in Section 6.1(h);
then Purchaser shall, following such termination of this Agreement, promptly,
but in no event later than three business days following written notice thereof,
pay Seller a termination fee in an amount of Two Million Dollars ($2,000,000).
(b) If this Agreement is terminated:
(i) because the representations and warranties of Seller
contained in Article II were not or are not accurate in all material
respects as of the date hereof and as of the Closing Date as though
restated on and as of such date (except in the case of any
representation or warranty that by its terms is made as of a date
specified therein, which shall be accurate in all material respects as
of such date);
(ii) because Seller shall have failed to perform and comply
with, in all material respects, all agreements required by this
Agreement to be performed or complied with by it prior to or at the
Closing; or
(iii) by Seller pursuant to Sections 7.1(b) (only upon a
failure to satisfy the conditions under Section 6.2(f)), 7.1(c), or
7.1(f) (but only if the merger contemplated by the Merger Agreement
shall not have occurred);
then Seller shall, following such termination of this Agreement, promptly, but
in no event later than three business days following written notice thereof,
together with reasonable supporting documentation, reimburse Purchaser the fees
and expenses incurred by Purchaser in connection with its consideration of the
transactions contemplated by this Agreement, up to a maximum aggregate amount of
One Million Dollars ($1,000,000).
(c) The payment by Purchaser of the amount set forth in Section 7.2(a)
shall be Seller's exclusive remedy against Purchaser upon termination of this
Agreement other than for a willful breach of this Agreement by Purchaser. The
payment by Seller of the amount set forth in Section 7.2(b) shall be Purchaser's
exclusive remedy against Seller upon termination of this Agreement other than
for a willful breach of this Agreement by Seller.
(d) If this Agreement is terminated as permitted under Section 7.1 for
any reason other than as set forth above in Sections 7.2(a) and 7.2(b), such
termination shall be without liability to any party to this Agreement or any
affiliate, shareholder, director, officer or representative of such party.
Article VIII
MISCELLANEOUS
8.1 Survival of Representations and Warranties. All representations and
warranties made by either party pursuant to this Agreement shall survive and
continue in full force and effect after the Closing Date until the close of
business on April 15, 2000, if the Closing Date is prior to January 1, 2000,
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<PAGE>
or April 15, 2001, if the Closing Date is on or after January 1, 2000 (either
such date, the "Expiration Date"), and any claim for breach thereof must be
asserted in writing by the Expiration Date. None of such representations and
warranties shall survive the termination of this Agreement pursuant to Section
7.1.
8.2 Costs and Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, each of the parties to this Agreement shall bear
its own expenses incurred in connection with the negotiation, preparation,
execution and closing of this Agreement and the transactions provided for
hereby.
8.3 Notices. All notices or other communications required or permitted
by this Agreement shall be effective upon receipt and shall be in writing and
delivered personally or by overnight courier, or sent by facsimile, as follows:
If to Purchaser, to:
Lady Luck Gaming Corporation
220 Stewart Avenue
Las Vegas, Nevada 89101
Attn: Lawrence P. Tombari, Chief Financial Officer
Fax: 702-477-3003
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038-4892
Attn: Brian Hoffmann, Esq.
Fax: 212-504-6666
If to Seller, to:
Sodak Gaming, Inc.
5301 S. Highway 16
Rapid City, South Dakota 57701
Attn: Roland Gentner, Chief Executive Officer
Fax: 605-355-5068
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
Attn: William A. Groll, Esq.
Fax: 212-225-3999
or to such other address as hereafter shall be furnished as provided in this
Section 8.3 by any of the parties hereto to the other parties hereto.
8.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
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<PAGE>
8.5 Entire Agreement. This Agreement (including the Seller Disclosure
Schedule and the Purchaser Disclosure Schedule) sets forth the entire
understanding and agreement between the parties as to the matters covered herein
and supersedes and replaces any prior understanding, agreement or statement of
intent, in each case, written or oral, of any and every nature with respect
thereto. Purchaser acknowledges hereby that it has conducted its own independent
review and analysis of the Subject Company and its business and that it has been
provided access to the properties, records and personnel of the Subject Company
for this purpose. In entering into this Agreement, Purchaser has relied solely
upon its own investigation and analysis and the representations and warranties
set forth in this Agreement and (a) acknowledges that neither Seller nor any of
its affiliates, directors, officers, employees, agents, representatives or
advisors makes any representation or warranty, either express or implied, as to
the accuracy or completeness of (and agrees that none of such persons shall have
any liability or responsibility to it in respect of) any of the information
provided or made available to Purchaser or its agents or representatives, except
as and only to the extent expressly provided for in this Agreement.
8.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY
THE LAWS OF THE STATE OF NEW YORK, INCLUDING VALIDITY, INTERPRETATION AND
EFFECT, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
8.7 No Third Party Rights; Assignment. This Agreement is intended to be
solely for the benefit of the parties hereto and is not intended to confer any
benefits upon, or create any rights in favor of, any person other than the
parties hereto and shall not be assignable without the prior written consent of
the other parties.
8.8 Waivers and Amendments. No modification of or amendment to this
Agreement shall be valid unless in a writing signed by the parties hereto
referring specifically to this Agreement and stating the parties' intention to
modify or amend the same. Any waiver of any term or condition of this Agreement
must be in a writing signed by the party sought to be charged with such waiver
referring specifically to the term or condition to be waived, and no such waiver
shall be deemed to constitute a waiver of any other breach of the same or of any
other term or condition of this Agreement.
8.9 Interpretation. When a reference is made in this Agreement to a
Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" and "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
8.10 Agreement to Indemnify.
(a) Subject to the terms and conditions of Sections 8.10, 8.11 and
8.12, Seller hereby agrees to indemnify, defend and hold harmless Purchaser and
any parent, subsidiary or Affiliate of any thereof and their respective officers
and directors, agents and representatives and persons claiming by and through
any of them (the "Purchaser Group"), for, from and against all demands, claims,
actions, causes of action, assessments, losses, damages, liabilities, costs and
expenses, including, without limitation, interest, penalties and reasonable
attorneys' fees and expenses (collectively, "Damages"), directly or indirectly
asserted against, resulting to, imposed upon or incurred by the Purchaser Group
or any member thereof, at any time after the Closing Date and prior to the
Expiration Date, by reason of or resulting from any breach of any representation
or warranty of Seller contained in or made pursuant to this Agreement or any
other agreement or document executed in connection herewith (collectively,
"Purchaser Claims"); provided, however, that the Purchaser Group shall be
entitled to indemnification hereunder only when the aggregate of all such
Purchaser Claims exceeds $500,000, and then only for the amount of such excess.
In no event shall the Purchaser Group be entitled to indemnification hereunder
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<PAGE>
for an amount, in the aggregate, in excess of Seven Million Five Hundred
Thousand Dollars ($7,500,000).
(b) Subject to the terms and conditions of Sections 8.10, 8.11 and
8.12, Purchaser hereby agrees to indemnify, defend and hold harmless Seller and
any parent, subsidiary or Affiliate of any thereof and their respective officers
and directors, agents and representatives and persons claiming by and through
any of them (the "Seller Group"), from and against all Damages, directly or
indirectly asserted against, resulting to, imposed upon or incurred by the
Seller Group or any member thereof, at any time after the Closing Date and prior
to the Expiration Date, by reason of or resulting from any breach of any
representation or warranty of Purchaser contained in or made pursuant to this
Agreement or any other agreement or document executed in connection herewith
(collectively, "Seller Claims," and, together with Purchaser Claims, "Claims");
provided, however, that the Seller Group shall be entitled to indemnification
hereunder only when the aggregate of all such Seller Claims exceeds $500,000,
and then only for the amount of such excess. In no event shall the Seller Group
be entitled to indemnification hereunder for an amount, in the aggregate, in
excess of Seven Million Five Hundred Thousand Dollars ($7,500,000).
8.11 Conditions of Indemnification. The obligations and liabilities of
Seller and Purchaser, as the case may be, under Section 8.10 (herein referred to
as the "Indemnifying Party"), with respect to Claims made by third parties shall
be subject to the following terms and conditions:
(a) Upon obtaining knowledge thereof, the person to whom such Claim
relates (the "Indemnified Party") shall promptly notify the Indemnifying Party
of such Claim; but the omission so to notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability it may have to the Indemnified
Party under Section 8.10 unless, and only to the extent that, such omission so
to notify results in the loss of substantive rights or defenses.
(b) If the Indemnifying Party acknowledges its obligations to indemnify
and hold harmless hereunder, the Indemnifying Party shall have the right to
employ such counsel as is reasonably acceptable to the Indemnified Party to
defend any such Claim asserted against the Indemnified Party; provided, however,
that if the defendants in any such action include both the Indemnifying Party
and the Indemnified Party and the Indemnified Party shall have reasonably
concluded that there may be legal defenses or rights available to the
Indemnified Party which are substantially different from or in actual or
potential conflict with those available to the Indemnifying Party, the
Indemnified Party shall have the right to select one law firm to act at the
Indemnifying Party's expense as separate counsel, on behalf of such Indemnified
Party (or, if there be more than one, all Indemnified Parties). The Indemnified
Party shall have the right to participate in the defense of any such Claim. The
Indemnified Party shall not settle any Claim without the consent of the
Indemnifying Party. The Indemnified Party shall make available to the
Indemnifying Party and its representatives all records and other material
required by them for their use in contesting any Claim asserted by a third party
against the Indemnified Party.
(c) Anything in this Section 8.11 to the contrary notwithstanding, (i)
if there is a reasonable probability that a Claim may materially and adversely
affect an Indemnified Party other than as a result of money damages or other
money payments, such Indemnified Party shall have the right to defend, at its
own cost and expense, and to compromise or settle such Claim with the consent of
the Indemnifying Party, and (ii) the Indemnifying Party shall not, without the
written consent of the Indemnified Party, settle or compromise any Claim or
consent to the entry of any judgment which does not include as an unconditional
term thereof the giving by the claimant or the plaintiff to the Indemnified
Party of a release from all liability in respect of such Claim.
(d) The Indemnified Party shall, upon learning of the existence of a
Claim or any other event which is likely to result in Damages, take all
reasonable actions to mitigate such Damages.
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<PAGE>
8.12 Amount of Indemnification. In addition to the deductible amount of
$500,000 and the maximum amount of $7,500,000 set forth in Section 8.10 above,
any indemnification hereunder shall be subject to the following deductions and
limitations:
(a) No indemnification shall be due by Seller in respect of any Damages
that have been taken into account in the calculation of Working Capital.
(b) The amount of indemnification due hereunder in respect of any
Damages shall be calculated after deduction of (i) any benefit to which the
Indemnified Party or, if such Indemnified Party is Purchaser, the Subject
Company, is entitled in respect thereof in the form of a reduction of Taxes (ii)
any amounts paid or payable to the Indemnified Party or, if such Indemnified
Party is Purchaser, to the Subject Company, under any insurance policies in
respect of the Damages and (iii) any amount of the Damages which is attributable
to the action or failure to act of the Indemnified Party or, if such Indemnified
Party is Purchaser, of the Subject Company.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first written above.
SODAK GAMING, INC.
By: /s/ Roland W. Gentner
-------------------------------------
Name: Roland W. Gentner
Title: Chief Executive Officer
GAMBLERS SUPPLY MANAGEMENT COMPANY
By: /s/ Roland W. Gentner
-------------------------------------
Name: Roland W. Gentner
Title: President
LADY LUCK GAMING CORPORATION
By: /s/ Andrew Tompkins
-------------------------------------
Name: Andrew Tompkins
Title: Chief Executive Officer
-57-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF SODAK GAMING, INC.'S FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 23,199
<SECURITIES> 0
<RECEIVABLES> 39,537
<ALLOWANCES> 1,941
<INVENTORY> 21,194
<CURRENT-ASSETS> 109,004
<PP&E> 21,676
<DEPRECIATION> 4,646
<TOTAL-ASSETS> 145,264
<CURRENT-LIABILITIES> 28,991
<BONDS> 0
0
0
<COMMON> 23
<OTHER-SE> 115,473
<TOTAL-LIABILITY-AND-EQUITY> 145,264
<SALES> 34,628
<TOTAL-REVENUES> 45,846
<CGS> 26,177
<TOTAL-COSTS> 35,230
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 169
<INCOME-PRETAX> 10,861
<INCOME-TAX> 3,996
<INCOME-CONTINUING> 6,865
<DISCONTINUED> 1,483
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,348
<EPS-BASIC> 0.36
<EPS-DILUTED> 0.36
</TABLE>
