<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________
SCHEDULE 13D
(RULE 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
HARVEYS CASINO RESORTS
- -------------------------------------------------------------------------------
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
- -------------------------------------------------------------------------------
(Title of Class of Securities)
NOT APPLICABLE
- -------------------------------------------------------------------------------
(CUSIP Number)
KELVIN DAVIS
C/O COLONY CAPITAL, INC.
1999 AVENUE OF THE STARS, SUITE 1200
LOS ANGELES, CALIFORNIA 90067
(310) 282-8800
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
with a copy to:
JONATHAN H. GRUNZWEIG
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE, SUITE 3400
LOS ANGELES, CALIFORNIA 90071-3144
(213) 687-5000
FEBRUARY 1, 1999
- -------------------------------------------------------------------------------
(Date of Event Which Requires
Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: / /
(Continued on following pages)
(Page 1 of 12 Pages)
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- -------------------------- --------------------
CUSIP No. NOT APPLICABLE 13D Page 2 of 12 Pages
- -------------------------- --------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
COLONY HCR VOTECO, LLC
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- --------------------------------------------------------------------------------
NUMBER 7 SOLE VOTING POWER
OF SHARES 38,800
BENEFI- ----------------------------------------------------------------
CIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH RE- ----------------------------------------------------------------
PORTING 9 SOLE DISPOSITIVE POWER
PERSON 38,800
WITH ----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
38,800
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------
<PAGE>
- -------------------------- --------------------
CUSIP No. NOT APPLICABLE 13D Page 3 of 12 Pages
- -------------------------- --------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
THOMAS J. BARRACK, JR.
- --------------------------------------------------------------------------------
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
NUMBER 7 SOLE VOTING POWER
OF SHARES -0-
BENEFI- ----------------------------------------------------------------
CIALLY 8 SHARED VOTING POWER
OWNED BY 38,800
EACH RE- ----------------------------------------------------------------
PORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH ----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
38,800
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
38,800
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
- -------------------------- --------------------
CUSIP No. NOT APPLICABLE 13D Page 4 of 12 Pages
- -------------------------- --------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
KELVIN L. DAVIS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
NUMBER 7 SOLE VOTING POWER
OF SHARES -0-
BENEFI- ----------------------------------------------------------------
CIALLY 8 SHARED VOTING POWER
OWNED BY 38,800
EACH RE- ----------------------------------------------------------------
PORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH ----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
38,800
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
38,800
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D (the "Schedule 13D") relates to the
Class A Common Stock, par value $.01 per share (the "Class A Common"), of
Harveys Casino Resorts, a Nevada corporation (the "Issuer"), as successor by
merger to Harveys Acquisition Corporation, a Nevada corporation ("HAC"). The
principal executive office of the Issuer is located at Highway 50 and
Stateline Avenue, P.O. Box 128, Lake Tahoe, Nevada 89449.
The information set forth in the Exhibits attached hereto is hereby
expressly incorporated herein by reference, and the response to each item of
this Schedule 13D is qualified in its entirety by the provisions of such
Exhibits.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is filed by Colony HCR Voteco, LLC, a Delaware
limited liability company ("Voteco"), Thomas J. Barrack, Jr. and Kelvin L.
Davis (collectively, the "Reporting Persons"). Messrs. Barrack and Davis are
the sole members and executive officers of Voteco. Mr. Barrack holds a 40%
interest in Voteco, and Mr. Davis holds a 60% interest in Voteco. The
Reporting Persons are making this joint filing because they may be deemed to
constitute a "group" within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), although neither the
fact of this filing nor anything contained herein shall be deemed to be an
admission by the Reporting Persons that such a group exists.
Voteco is the registered owner of the Class A Common. Voteco's
principal business is its investment in the Class A Common. Mr. Barrack's
principal occupation is Chairman and Chief Executive Officer of Colony
Capital, Inc. ("Colony Capital") and Colony Advisors, Inc. ("Colony
Advisors"). Mr. Davis' principal occupation is President and Chief Operating
Officer of Colony Capital and Colony Advisors. Messrs. Barrack and Davis are
both United States citizens. The address of the principal business and
principal office of Voteco, and the business address of Messrs. Barrack and
Davis, is 1999 Avenue of the Stars, Suite 1200, Los Angeles, California 90067.
During the last five years, none of the Reporting Persons (1) has
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (2) has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or state securities laws or finding any violation with
respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 1, 1999, in connection with the merger (the "Merger")
of HAC with and into the Issuer pursuant to an Agreement and Plan of Merger
dated as of February 1,
5
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1998 (the "Merger Agreement") by and between HAC and the Issuer, Voteco
acquired 37,999 shares of Class A Common for $742,735 in cash and 10 shares
of 13-1/2% Series A Senior Redeemable Convertible Cumulative Preferred Stock,
par value $.01 per share (the "Series A Preferred"), of the Issuer for $5,500
in cash. Such cash consideration was obtained by Voteco from its available
cash. The Series A Preferred is convertible into Class A Common at an
initial conversion rate of 28.7309164 shares of Class A Common for each share
of Series A Preferred, subject to adjustment in customary circumstances to
prevent dilution. A copy of the Merger Agreement is included as Exhibit 1
hereto and incorporated herein by this reference.
In addition, on February 1, 1999, in connection with the Merger,
Colony Investors III, L.P., a Delaware limited partnership ("Colony III"),
acquired 3,879,001 shares of nonvoting Class B Common, par value $.01 per
share (the "Class B Common"), of the Issuer, representing 97% of the total
outstanding Class B Common, for $74,256,265 in cash, and 99,990 shares of
13-1/2% Series B Senior Redeemable Convertible Cumulative Preferred Stock,
par value $.01 per share (the "Series B Preferred"), of the Issuer for
$54,994,500 in cash. The Series B Preferred is convertible into Class B
Common of the Issuer on substantially the same basis as the Series A
Preferred is convertible into Class A Common. Such cash consideration was
obtained by Colony III from (1) a $425 million revolving credit facility
entered into by Colony III and the banks therein named, led by Bankers Trust
Company and The Chase Manhattan Bank and (2) capital contributions from
Colony III's limited partners.
As of January 29, 1999, the date of effectiveness of the
registration of the Class A Common under Section 12 of the Exchange Act,
Voteco owned one share of Class A Common, which it had acquired for
consideration of $1 in cash from its available cash. Such share represented
all of the Class A Common outstanding prior to February 1, 1999, and was
acquired in connection with the initial capitalization of HAC.
Pursuant to a Transfer Restriction Agreement dated as of February
1, 1999 among the Reporting Persons and Colony III (the "Transfer Restriction
Agreement"), Colony III has an option (which it must transfer to an Approved
Purchaser (as defined herein), subject to certain exceptions) to purchase any
or all shares of Class A Common and Series A Preferred held by Voteco upon
the happening of certain events for the original price paid by Voteco for
such securities plus an interest factor, as described in the Transfer
Restriction Agreement. See "Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer." The Transfer
Restriction Agreement is attached hereto as Exhibit 2 and incorporated herein
by this reference.
ITEM 4. PURPOSE OF TRANSACTION.
The purpose of the acquisition of the shares of Class A Common by
Voteco was the acquisition of control of the Issuer. Pursuant to the Merger
Agreement, HAC was merged with and into the Issuer on February 2, 1999, with
the Issuer being the surviving entity and continuing its business and
operations, and the Articles of Incorporation and Bylaws of HAC became the
Articles of Incorporation and Bylaws of the Issuer. After consummation of the
Merger, Colony III owns 97% of the outstanding non-voting common stock of the
Issuer through the ownership of 97% of the outstanding non-voting Class B
Common, and 99.99% of the outstanding preferred stock of the Issuer through
its ownership of all the outstanding Series B Preferred, and Voteco owns 97%
of the outstanding voting stock of the Issuer through its ownership of 97% of
the outstanding voting Class A Common and .01% of the outstanding preferred
stock of the Issuer through its ownership of all the outstanding Series A
Preferred. Certain executive officers of
6
<PAGE>
the Issuer own 1.65% of the outstanding shares of Class A Common and Class B
Common, and certain other executive officers are expected to be granted an
aggregate of 1.35% of the outstanding shares of Class A Common and Class B
Common. As a result of its ownership of Class A Common, Voteco is able to
govern all matters of the Issuer that are subject to the vote of
stockholders, including the appointment of directors and the amendment of the
Issuer's Articles of Incorporation and Bylaws. In addition, in the Merger
the directors of HAC, consisting of Messrs. Barrack and Davis, became
directors of the Issuer, with Mr. Barrack becoming the Chairman of the Board
of Directors of the Issuer, and Charles W. Scharer, the President and Chief
Executive Officer of the Issuer prior to and following the Merger and the
Chairman of the Board of Directors of the Issuer prior to the Merger, was
appointed a director of the Issuer.
In connection with the Merger, the Issuer's common stock
outstanding prior to the consummation of the Merger was delisted from the New
York Stock Exchange and became eligible for termination of registration
pursuant to Section 12(d) of the Exchange Act and Rule 12d2-2(a)(4)
thereunder, and its registration was so terminated. The Issuer paid cash
dividends prior to the Merger, but has no plans to pay cash dividends after
the Merger.
Except as disclosed in this Item 4, the Reporting Persons have no
current plans or proposals which relate to or would result in any of the
events described in Items (a) through (j) of the instructions to Item 4 of
Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Voteco owns 38,800 shares of Class A Common, which represent 97%
of the shares of Class A Common outstanding as of February 1, 1999, and 10
shares of Series A Preferred. Voteco has the sole power to vote such shares
of Class A Common. Voteco's power to dispose of such shares of Class A
Common and Series A Preferred is subject to the Transfer Restriction
Agreement, pursuant to which Voteco may not transfer any shares of its Class
A Common or Series A Preferred, except as provided in such Transfer
Restriction Agreement. See "Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer."
Messrs. Barrack and Davis, as the sole members and executive
officers of Voteco, may be deemed to have acquired (1) beneficial ownership
of the 38,800 shares of Class A Common owned by Voteco, which shares
represent 97% of the shares of Class A Common outstanding as of February 2,
1999, and (2) beneficial ownership of the 10 shares of Series A Preferred
owned by Voteco. Messrs. Barrack and Davis each disclaim beneficial
ownership of such shares of Class A Common and Series A Preferred. Messrs.
Barrack and Davis, as the sole members of Voteco, share the power to direct
the vote of the shares of Class A Common held by Voteco. Except as set forth
in Item 3, there have been no transactions effected in the Class A Common
during the past 60 days by the Reporting Persons or any other person or
entity disclosed in Item 2. No other person is known by the Reporting
Persons to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, the Class A Common.
7
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The responses to Items 3 and 4 are incorporated herein by this
reference.
The Transfer Restriction Agreement provides, among other things,
that (1) Colony III has the option to purchase shares of Class A Common from
Voteco in connection with sales of Class B Common by Colony III to a proposed
purchaser who, in connection with such proposed sale, has obtained all
licenses, permits, registrations, authorizations, consents, waivers, orders,
findings of suitability or other approvals required to be obtained from, and
has made all filings, notices or declarations required to be made with, all
gaming authorities under all applicable gaming laws (an "Approved Purchaser,"
and such sale, an "Approved Sale"), (2) Colony III has the option to purchase
shares of Series A Preferred from Voteco in connection with an Approved Sale
of Series B Preferred by Colony III, and (3) Voteco will not transfer
ownership of shares of Class A Common or Series A Preferred owned by it
except pursuant to such options of Colony III. The Transfer Restriction
Agreement provides that, unless Colony III otherwise receives approval from
applicable gaming authorities, Colony III shall assign such options to the
applicable Approved Purchaser. The exercise price of Colony III's option on
Class A Common or Series A Preferred, as the case may be, is equal to the sum
of (a) the amount in cash or the fair market value of any other consideration
originally paid by Voteco for such shares of Class A Common or Series A
Preferred, as the case may be, plus (b) the amount equivalent to a 6 percent
annual rate of interest on such amount or fair market value, compounded
annually, calculated from the date Voteco acquired such shares of Class A
Common, on the basis of a 360-day year comprised of twelve 30-day months, to
and excluding the date of the Approved Sale. The foregoing description is
qualified in its entirety by the Transfer Restriction Agreement, which is
attached hereto as Exhibit 2 and incorporated herein by this reference.
In addition, the Articles of Incorporation of the Issuer provide
that no stock or other securities issued by the Issuer and no interest
therein or claim or charge thereto may be transferred, except in accordance
with the provisions of the Nevada Gaming Control Act and the regulations
promulgated thereunder.
The Issuer, Voteco, Colony III, Mr. Scharer (President and Chief
Executive Officer of the Issuer), Stephen L. Cavallaro (Executive Vice
President and Chief Operating Officer of the Issuer) and John J. McLaughlin
(Senior Vice President and Chief Financial Officer of the Issuer) have
entered into a Stockholders Agreement dated as of February 2, 1999 (the
"Stockholders Agreement"). Other members of the Issuer's management
(together with Messrs. Scharer, Cavallaro and McLaughlin, the "Employee
Stockholders") who are issued shares of Class A Common or Class B Common
(collectively, "Common Stock") from time to time are expected to become
parties to the Stockholders Agreement. Pursuant to the Stockholders
Agreement, in each case subject to certain exceptions, (1) prior to the
closing of a public offering of Common Stock registered under the Securities
Act of 1933, as amended (the "Securities Act"), in which such shares are
approved for listing on the New York Stock
8
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Exchange or American Stock Exchange or approved for quotation on the Nasdaq
National Market, Employee Stockholders shall not transfer any shares of
Common Stock without the written consent of Voteco, (2) the Issuer, Voteco
and Colony III have certain rights of first offer with respect to proposed
sales of Common Stock by Employee Stockholders, (3) with respect to Common
Stock held by them, the Employee Stockholders have certain "tag-along" rights
in connection with sales of Common Stock held by Voteco, Colony III and their
affiliates and certain incidental registration rights in connection with
proposed registrations by the Issuer of Common Stock under the Securities
Act, and (4) in the event Voteco, Colony III or their affiliates propose to
sell to a third party 90 percent or more of the then-outstanding common
equity of the Issuer, the Employee Stockholders shall consent and not object
to such sale, shall vote shares of Common Stock held by them in favor of such
sale in any required vote, shall sell shares of Common Stock held by them at
the price and on the terms and conditions upon which Voteco, Colony III or
their affiliates sell Common Stock, and shall take certain other actions
deemed reasonably necessary in furtherance of such sale to a third party.
The foregoing description is qualified in its entirety by the Stockholders
Agreement, which is attached hereto as Exhibit 3 and incorporated herein by
this reference.
Except as set forth above and as described in Items 3 and 4, none
of the Reporting Persons nor any other person disclosed in Item 2 has any
contract, arrangement, understanding, or relationship (legal or otherwise)
with any person with respect to any securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Agreement and Plan of Merger, dated as of February 1, 1998,
between HAC and the Issuer (incorporated herein by reference to
Exhibit 2.1 of Harveys Acquisition Corporation's Registration
Statement on Form 10 (File no. 0-25093), filed November 20,
1998).
Exhibit 2 Transfer Restriction Agreement, dated as of February 1, 1999,
among Thomas J. Barrack, Jr., Kelvin L. Davis, Voteco and Colony
III.
Exhibit 3 Stockholders Agreement, dated as of February 2, 1999, among the
Issuer, Voteco, Colony III, and the securityholders of the Issuer
identified from time to time in Schedule A thereto.
Exhibit 4 Joint Filing Agreement.
9
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
COLONY HCR VOTECO, LLC
Date: February 9, 1999 By: /S/ KELVIN L. DAVIS
-------------------------------
Kelvin L. Davis
Member
10
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 9, 1999 /s/ THOMAS J. BARRACK, JR.
-------------------------------
THOMAS J. BARRACK, JR.
11
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 9, 1999 /s/ KELVIN L. DAVIS
-------------------------------
KELVIN L. DAVIS
12
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EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C> <C>
Exhibit 1 Agreement and Plan of Merger, dated as of February
1, 1998, between HAC and the Issuer (incorporated
herein by reference to Exhibit 2.1 of Harveys
Acquisition Corporation's Registration Statement
on Form 10 (File no. 0-25093), filed November 20,
1998).
Exhibit 2 Transfer Restriction Agreement, dated as of
February 1, 1999, among Thomas J. Barrack, Jr.,
Kelvin L. Davis, Voteco and Colony III.
Exhibit 3 Stockholders Agreement, dated as of February 2,
1999, among the Issuer, Voteco, Colony III, and
the securityholders of the Issuer identified from
time to time in Schedule A thereto.
Exhibit 4 Joint Filing Agreement.
</TABLE>
<PAGE>
EXHIBIT 2
TRANSFER RESTRICTION AGREEMENT
This Transfer Restriction Agreement (this "AGREEMENT") is made as
of February 1, 1999 among Thomas J. Barrack, Jr. ("MR. BARRACK"), Kelvin L.
Davis ("MR. DAVIS" and together with Mr. Barrack, the "VOTECO MEMBERS"),
Colony HCR Voteco, LLC, a Delaware limited liability company ("VOTECO"), and
Colony Investors III, L.P., a Delaware limited partnership ("COLONY III").
RECITALS
WHEREAS, as of the date hereof (the "CLOSING DATE"), Harveys
Acquisition Corporation, a Nevada corporation ("HAC"), merged (the "MERGER")
with and into Harveys Casino Resorts, a Nevada corporation (the "COMPANY"),
with the Company being the surviving corporation, pursuant to an Agreement
and Plan of Merger dated as of February 1, 1998 (the "MERGER AGREEMENT");
WHEREAS, HAC was authorized to issue (a) shares of common stock
consisting of (i) Class A Common Stock, par value $.01 per share (the "CLASS
A COMMON"), and (ii) Class B Common Stock, par value $.01 per share (the
"CLASS B COMMON" and, together with the Class A Common, the "COMMON STOCK")
and (b) shares of preferred stock consisting of (i) Series A Redeemable
Convertible Preferred Stock, par value $.01 per share (the "SERIES A
PREFERRED"), and (ii) Series B Redeemable Convertible Preferred Stock, par
value $.01 per share (the "SERIES B PREFERRED and, together with the Series A
Preferred, the "PREFERRED STOCK");
WHEREAS, immediately prior to the Merger, Voteco was the record
owner of 38,800 shares of Class A Common, 10 shares of Series A Preferred and
no other Common Stock or Preferred Shares, and Colony III was the record
owner of 3,880,000 shares of Class B Common, 99,990 shares of Series B
Preferred and no other Common Stock or Preferred Stock;
WHEREAS, in the Merger, the Articles of Incorporation of HAC became
the Articles of Incorporation of the Company, and the Common Stock and
Preferred Stock of HAC became the Common Stock and Preferred Stock of the
Company;
WHEREAS, from time to time, Voteco may acquire additional shares of
Class A Common or other capital stock of the Company convertible into,
exchangeable for or otherwise providing Voteco with the right to acquire
shares of
<PAGE>
Class A Common, and Colony III may acquire additional shares of Class B
Common or other capital stock of the Company convertible into, exchangeable
for or otherwise providing Colony III with the right to acquire shares of
Class B Common;
WHEREAS, the Voteco Members are the record and beneficial owners of
all the issued and outstanding limited liability company interests of Voteco
(the "VOTECO INTERESTS");
WHEREAS, the parties hereto believe it is desirable and in their
mutual best interests to provide for procedures regarding the ownership of
the Class A Common owned by Voteco and the Voteco Interests owned by the
Voteco Members; and
WHEREAS, the parties hereto further believe that the execution of
this Agreement will help facilitate the continuous, harmonious and effective
management of Colony III's investment in the Company.
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants, promises, agreements, representations and warranties of the
parties hereto, the parties hereto hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. As used herein, the following
terms have the respective meanings set forth below:
"AGREEMENT" has the meaning given to such term in the introduction
hereof.
"APPROVED PURCHASER" means a proposed purchaser of Common Stock or
Common Stock Equivalents, who, in connection with its proposed purchase of
Common Stock or Common Stock Equivalents, has obtained all licenses, permits,
registrations, authorizations, consents, waivers, orders, findings of
suitability or other approvals required to be obtained from, and has made all
filings, notices or declarations required to be made with, all Gaming
Authorities under all applicable Gaming Laws.
"APPROVED SALE" has the meaning given to such term in Section 3(a)
hereof.
<PAGE>
"APPROVED SALE DATE" has the meaning given to such term in Section
3(b) hereof.
"CALL NOTICE" has the meaning given to such term in Section 3.2
hereof.
"CLASS A COMMON" has the meaning given to such term in the recitals
set forth above.
"CLASS A EQUIVALENTS" means any securities of the Company,
including the Series A Preferred, convertible into, exchangeable for or
otherwise providing the holder thereof any right to acquire shares of Class A
Common.
"CLASS A HOLDER" means a holder of Class A Common or Class A
Equivalents; PROVIDED that Colony III shall not be considered a Class A
Holder, regardless of whether Colony III holds any Class A Common.
"CLASS B COMMON" has the meaning given to such term in the recitals
set forth above.
"CLASS B EQUIVALENTS" means any securities of the Company,
including the Series B Preferred, convertible into, exchangeable for or
otherwise providing the holder thereof any right to acquire shares of Class B
Common, which securities are substantially equivalent in designations,
preferences, limitations, restrictions and relative rights, but not as to
voting, to a class or series of Class A Equivalents.
"COLONY III" has the meaning given to such term in the introduction
hereof.
"COLONY III ADVISORY COMMITTEE" means the advisory committee
comprised of certain limited partners of Colony III.
"COLONYGP III" has the meaning given to such term in Section 2(b)
hereof.
"COMMON STOCK" has the meaning given to such term in the recitals
set forth above.
<PAGE>
"COMMON STOCK EQUIVALENTS" means the Class A Common, Class A
Equivalents, Class B Common or Class B Equivalents of the Company.
"COMPANY" has the meaning given to such term in the recitals set
forth above.
"CORRESPONDING CLASS A EQUIVALENTS" means, with respect to any
referenced Class B Equivalents, the Class A Equivalents that are
substantially equivalent in designations, preferences, limitations,
restrictions and relative rights, but not as to voting, to such specified
Class B Equivalents, it being understood that Series A Preferred is the
Corresponding Class A Equivalent of Series B Preferred.
"CORRESPONDING CLASS B EQUIVALENTS" means, with respect to any
referenced Class A Equivalents, the Class B Equivalents that are
substantially equivalent in designations, preferences, limitations,
restrictions and relative rights, but not as to voting, to such specified
Class A Equivalents, it being understood that Series B Preferred is the
Corresponding Class B Equivalent of Series A Preferred.
"GAMING AUTHORITIES" means all governmental authorities or agencies
with regulatory control or jurisdiction over the gaming or gambling
operations of the Company and its subsidiaries, including without limitation,
the Nevada State Gaming Control Board, the Nevada Gaming Commission, the
Colorado Division of Gaming, the Colorado Limited Gaming Control Commission
and the Iowa Racing and Gaming Commission.
"GAMING LAWS" means any U.S. Federal, state, local or foreign
statute, ordinance, rule, regulation, permit, consent, approval, license,
judgment, order, decree, injunction or other authorization governing or
relating to the current or contemplated manufacturing, distribution, casino
gambling and gaming activities and operations of the Company, including,
without limitation, the Nevada Gaming Control Act and the rules and
regulations promulgated thereunder, the Colorado Limited Gaming Act and the
rules and regulations promulgated thereunder and Chapter 99F of the Code of
Iowa and the rules and regulations promulgated thereunder.
"PREFERRED STOCK" has the meaning given to such term in the
recitals set forth above.
<PAGE>
"REQUIRED NUMBER" means the number of shares of Class A Common or
Class A Equivalents to be purchased by Colony III from Voteco pursuant to the
exercise by Colony III of its option to purchase Class A Common or Class A
Equivalents pursuant to the provisions of Section 3 hereof, in connection
with an Approved Sale, as specified by Colony III in a Call Notice delivered
by Colony III to Voteco; PROVIDED that unless otherwise approved by the
Colony III Advisory Committee, such specified number shall be equal to the
product of (i) the number of shares of Class A Common or Class A Equivalents,
as applicable, held by Voteco immediately prior to the consummation of such
Approved Sale times (ii) a fraction, the numerator of which is the number of
shares of Class B Common or Corresponding Class B Equivalents, as applicable,
to be Transferred by Colony III to such Approved Purchaser pursuant to such
Approved Sale and the denominator of which is the total number of shares of
Class B Common or Corresponding Class B Equivalents, as applicable, held by
Colony III immediately prior to consummation of such Approved Sale.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES A PREFERRED" has the meaning given to such term in the
recitals set forth above.
"SERIES A HOLDER" means a holder of Series A Preferred; PROVIDED
that Colony III shall not be considered a Series A Holder, regardless of
whether Colony III holds any Series A Preferred.
"SERIES B PREFERRED" has the meaning given to such term in the
recitals set forth above.
"TRANSFER" means to voluntarily or involuntarily sell, assign,
exchange or in any other manner transfer with or without consideration.
"Transferred" has the correlative meaning.
"VOTECO" has the meaning given to such term in the introduction
hereof.
"VOTECO INTERESTS" has the meaning given to such term in the
recitals set forth above.
<PAGE>
"VOTECO MEMBERS" has the meaning given to such term in the
introduction hereof.
Section 2. RESTRICTION ON TRANSFER.
(a) So long as Voteco holds any shares of Class A Common or
Class A Equivalents, Voteco shall not Transfer ownership of any or all such
shares or equivalents owned by it except as contemplated by Section 3 hereof.
The Transfer of record or beneficial ownership of any shares of Class A
Common or Class A Equivalents, by operation of law or otherwise, by or upon
the direction or authorization of Voteco shall be deemed invalid, null and
void, and of no force or effect, unless such Transfer is made pursuant to the
provisions of Section 3 hereof.
(b) No Voteco Member shall Transfer record or beneficial
ownership of any or all Voteco Interests owned by such Voteco Member, unless
such Transfer is approved in writing by the Colony III Advisory Committee.
The Transfer of record or beneficial ownership of any Voteco Interests, by
operation of law or otherwise, by or upon the direction or authorization of
any Voteco Member shall be deemed invalid, null and void, and of no force or
effect, and the transferee of any such Voteco Interests shall not be entitled
to vote such Voteco Interests or receive distributions on such Voteco
Interests or have any other rights in or respecting such Voteco Interests,
unless such Transfer is approved in writing by the Colony III Advisory
Committee. Notwithstanding anything herein to the contrary, each Voteco
Member may Transfer Voteco Interests to the other Voteco Member under the
same conditions as, and concurrently with, a buy-out by such other Voteco
Member of the Transferring Voteco Member's interests in ColonyGP III, Inc., a
Delaware corporation ("COLONYGP III"), pursuant to sections 5 and 6 of that
certain Shareholders Agreement dated as of January 10, 1998 among the Voteco
Members and ColonyGP III, Inc., a Delaware corporation.
Section 3. CALL OPTION.
(a) RIGHT TO CALL CLASS A COMMON AND CLASS A EQUIVALENTS.
Notwithstanding any other provision hereof, on each occasion that Colony III
proposes to Transfer (including, without limitation, by operation of law or
pursuant to any merger, consolidation, reorganization or recapitalization)
any of the Class B Common or Class B Equivalents held by it to an Approved
Purchaser (any such transaction, an "APPROVED SALE"), then Colony III shall
have an option, which, unless Colony III otherwise receives approval from
Gaming Authorities, Colony III shall
<PAGE>
assign to such Approved Purchaser (such Approved Purchaser or Colony III, as
applicable, hereinafter referred to as the "OPTIONHOLDER"), to purchase from
Voteco upon such Approved Sale the Required Number of Class A Common, in the
case of an Approved Sale of Class B Common, or Corresponding Class A
Equivalents, in the case of an Approved Sale of Class B Equivalents, at a
cash price per share equal to the sum of (a) the amount in cash or fair
market value of any other consideration originally paid by Voteco for such
Required Number of Class A Common or Corresponding Class A Equivalents, as
applicable, plus (b) the amount equivalent to a 6 percent annual rate of
interest on such amount or fair market value, compounded annually, calculated
from the date Voteco acquired such shares of Corresponding Class A Common or
Corresponding Class A Equivalents, as applicable, on the basis of a 360-day
year comprised of twelve 30-day months, to and excluding the Approved Sale
Date.
(b) CALL NOTICE. Prior to consummating any Approved Sale, if
the Optionholder elects to exercise the options granted to it under this
Section 3, Colony III shall provide each of the Class A Holders with a
written notice (the "CALL NOTICE") not less than five (5) days prior to the
proposed date of the Approved Sale (the "APPROVED SALE DATE"). The Call
Notice shall state that the Optionholder is exercising its option to purchase
Class A Common or Class A Equivalents pursuant to this Section 3 and shall
set forth: (i) the name and address of the Optionholder, (ii) the aggregate
number of Class B Common and Class B Equivalents held of record by Colony III
as of the date of the Call Notice, (iii) the number of Class B Common or
Class B Equivalents to be sold by Colony III to the Approved Purchaser
pursuant to such Approved Sale, (iv) the Required Number of Class A Common or
Class A Equivalents to be purchased by the Optionholder in connection with
such Approved Sale, (v) the Approved Sale Date and (vi) the address for
delivery of the certificates representing the Class A Common or Class A
Equivalents to be purchased by the Optionholder.
(c) DELIVERY OF CERTIFICATES. On the Approved Sale Date,
Voteco shall deliver to the Optionholder the certificates for the Class A
Common or Class A Equivalents being sold by it to the Optionholder, duly
endorsed for transfer with signatures guaranteed, in the manner and at the
address indicated in the Call Notice against delivery of immediately
available funds in the amount of the purchase price for such Class A Common
or Class A Equivalents.
<PAGE>
Section 4. LEGENDS. Voteco shall use its reasonable efforts to
cause each certificate representing Class A Common or Class A Equivalents owned
of record and beneficially by Voteco to contain the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
"THE OWNERSHIP AND TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO AND RESTRICTED BY THE TERMS AND CONDITIONS OF A
CERTAIN TRANSFER RESTRICTION AGREEMENT DATED FEBRUARY [__], 1998. THE
CORPORATION WILL FURNISH A COPY OF SUCH TRANSFER RESTRICTION AGREEMENT
WITHOUT CHARGE TO ANY STOCKHOLDER ON REQUEST."
Section 5. RECAPITALIZATIONS, ETC.; AFTER-ACQUIRED STOCK.
(a) The provisions of this Agreement (including any
calculation of share ownership) shall apply to any and all shares of capital
stock of the Company or any capital stock, partnership interests or any other
security evidencing ownership interests in any successor of the Company
(whether by merger, consolidation, sale of assets or otherwise) that may be
issued in respect of, in exchange for, or in substitution of the Common Stock
by reason of any stock dividend, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise.
(b) Whenever Voteco becomes the record or beneficial owner of
any additional shares of Class A Common, such shares shall be subject to the
terms of this Agreement and included in the definition of "Class A Common"
hereunder. Whenever Voteco becomes the record or beneficial owner of any
<PAGE>
additional Class A Equivalents, such Class A Equivalents shall be subject to
the terms of this Agreement and included in the definition of "Class A
Equivalents" hereunder. The certificates therefor shall be surrendered for
legending in accordance with Section 4 of this Agreement, unless already so
legended.
Section 6. TERMINATION. This Agreement shall terminate upon the
earlier of (a) Voteco owning no shares of Class A Common and no Class A
Equivalents or (b) Colony III owning no Class B Common and no Class B
Equivalents.
Section 7. NOTICES. Whenever notice is required to be given under
the provisions of this Agreement, it shall be given in writing by hand-delivery,
telefax, or United States registered or certified mail, return receipt
requested, and shall be deemed to have been transmitted on the date such notice
is so delivered, transmitted or mailed, if addressed as set forth below or to
such other addresses and fax numbers as any of the parties hereto by written
notice to the others parties hereto, may from time to time designate.
if to Mr. Barrack:
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Suite 1200
Los Angeles, California 90067
if to Mr. Davis:
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Suite 1200
Los Angeles, California 90067
if to Voteco:
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Suite 1200
Los Angeles, California 90067
Attn: Mr. Kelvin L. Davis
if to Colony III:
<PAGE>
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Suite 1200
Los Angeles, California 90067
Attn: Mr. Kelvin L. Davis
Section 8. ADDITIONAL ACTIONS AND DOCUMENTS. Each party hereto
shall take or cause to be taken such further actions and to execute and
deliver such documents or instruments as may from time to time be reasonably
necessary in order to carry out the purposes of this Agreement.
Section 9. SPECIFIC PERFORMANCE. The parties hereto recognize
that the provisions herein contained are of particular importance for the
protection and promotion of their existing and future interests; that the
shares of stock of the Company and the Voteco Interests will be closely held;
and that the relationships of the parties to one another are and will be such
that, in the event of any breach of this Agreement, a claim for monetary
damages may not constitute an adequate remedy; and that it may, therefore, be
necessary for the protection of all of the parties hereto and for the
effectuation of the provisions of this Agreement, in the event of a breach of
this Agreement, to apply for specific performance thereof. It is,
accordingly, hereby agreed that no objection to the form of the action or to
the form of relief prayed for in any proceeding for specific performance of
this Agreement, shall be raised by any party hereto, in order that such
relief may be obtained by the party aggrieved.
Section 10. CONSTRUCTION. Unless the context of this Agreement
clearly requires otherwise, references to the plural include the singular, to
the singular include the plural, to the male gender include the female and
neuter genders and vice versa, and to the part include the whole. The term
"including" is not limiting. The words "hereof," "herein," "hereby,"
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section and
clause references are to this Agreement unless otherwise specified.
Section 11. MISCELLANEOUS.
(a) NO WAIVER. No waiver or modification of any term or
condition of this Agreement shall be effective unless in writing signed by
all the parties hereto.
<PAGE>
(b) SEVERABILITY. In case any of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions are not contained herein.
(c) BINDING EFFECT. This Agreement shall be binding and
inure to the benefit of the parties hereto, their respective heirs,
guardians, personal representatives, successors, successors in interest, and
assigns.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
(e) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one document.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal with the intent that this be a sealed instrument, as of the day
and year first above written.
/s/ THOMAS J. BARRACK, JR.
--------------------------------
THOMAS J. BARRACK, JR.
/s/ KELVIN L. DAVIS
--------------------------------
KELVIN L. DAVIS
COLONY HCR VOTECO, LLC
By: /s/ THOMAS J. BARRACK, JR.
--------------------------------
Thomas J. Barrack, Jr.
Member
By: /s/ KELVIN L. DAVIS
--------------------------------
Kelvin L. Davis
Member
COLONY INVESTORS III, L.P.
By: COLONY CAPITAL III, L.P.
ITS GENERAL PARTNER
By: COLONY GP III, INC.
ITS GENERAL PARTNER
By: /s/ KELVIN L. DAVIS
--------------------------------
Name: Kelvin L. Davis
Title: President and
Chief Operating Officer
TRANSFER RESTRICTION AGREEMENT
<PAGE>
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "AGREEMENT") is entered into as
of February 2, 1999, by and among Harveys Casino Resorts, a Nevada
corporation (the "COMPANY"), Colony HCR Voteco, LLC, a Nevada limited
liability company ("VOTECO"), Colony Investors III, L.P., a Delaware limited
partnership ("COLONY III"), and the securityholders of the Company as
identified from time to time on Schedule A hereto (each an "EMPLOYEE
STOCKHOLDER" and, together with Voteco and Colony III, the "STOCKHOLDERS").
RECITALS
WHEREAS, Harveys Acquisition Corporation, a Nevada corporation
("HAC"), merged with and into the Company as of the date hereof (the "CLOSING
DATE"), with the Company being the surviving corporation, pursuant to an
Agreement and Plan of Merger dated as of February 1, 1998 (the "MERGER
AGREEMENT");
WHEREAS, in connection with the Merger Agreement, HAC, Charles W.
Scharer, Stephen L. Cavallaro and John J. McLaughlin entered into a
Memorandum of Understanding dated February 1, 1998, which provides, among
other things, that (1) HAC shall grant to certain executive officers of
Harveys the number of shares of Class A Common Stock, par value $.01 per
share ("CLASS A COMMON"), and Class B Common Stock, par value $.01 per share
("CLASS B COMMON" and, collectively with the Class A Common, "COMMON STOCK"),
equivalent in the aggregate to 3% of the Class A Common and Class B Common
outstanding as of the time the Merger becomes effective pursuant to the
Articles of Merger filed to effect the Merger, (2) HAC shall grant to such
officers certain options to acquire and other rights with respect to the
Common Stock and (3) certain such officers may acquire shares of Common Stock
utilizing certain amounts payable to them pursuant to the Company's
Supplemental Executive Retirement Plan; and
WHEREAS, the Company, Voteco, Colony III and the Employee
Stockholders desire to enter into this Agreement for the purpose of
regulating certain aspects of their relationships with regard to each other
and the Company.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Company and the
Stockholders agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
As used herein, the terms below shall have the following meanings.
Any such term, unless the context otherwise requires, may be used in the
singular or plural, depending upon reference.
"AFFILIATE" means (i) any Person or entity directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company (including, without limitation, each of the Stockholders and
their Related Parties), (ii) any spouse or non-adult child (including by
adoption) of such Person, (iii) any relative other than a spouse or non-adult
child (including by adoption) who has the same principal residence of any
natural person described in clause (i) above, (iv) any trust in which any
such Persons described in clause (i), (ii) or (iii) above has a beneficial
interest and (v) any corporation, partnership, limited liability company or
other organization of which any such Persons described in clause (i), (ii) or
(iii) above collectively own more than fifty percent (50%) of the equity of
such entity. For purposes of this definition, beneficial ownership of more
than ten percent (10%) of the voting common equity of a Person shall be
deemed to be control of such Person.
"APPROVED PURCHASER" means a proposed purchaser of Common Stock,
that, in connection with its proposed purchase of Common Stock, (i) has
obtained all licenses, permits, registrations, authorizations, consents,
waivers, orders, findings of suitability or other approvals required to be
obtained from, and has made all filings, notices or declarations required to
be made with, all Gaming Authorities under all applicable Gaming Laws or (ii)
is not required to obtain any such licenses, permits, registrations,
authorizations, consents, waivers, orders, findings of suitability or other
approvals.
"MR. BARRACK" means Thomas J. Barrack, Jr., an individual.
"BOARD" means the Board of Directors of the Company.
"CLASS A COMMON" has the meaning set forth in the recitals hereto.
"CLASS B COMMON" has the meaning set forth in the recitals hereto.
<PAGE>
"CLOSING DATE" has the meaning set forth in the recitals hereto.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" has the meaning set forth in the recitals hereto.
"MR. DAVIS" means Kelvin L. Davis, an individual.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXEMPT TRANSFER" means transfers of Restricted Securities (i) by
any Stockholder to such Stockholder's Related Parties, so long as effected
pursuant to a BONA FIDE transaction not intended to avoid the provisions of
this Agreement, (ii) subject to Section 2.4 hereof, by any Stockholder to any
other Person pursuant to an effective registration statement under the
Securities Act, and (iii) by any Employee Stockholder to the Company, Voteco,
Colony III or Affiliates of the Company, Voteco or Colony III, PROVIDED that
no transfer pursuant to the foregoing clause (i) shall be an Exempt Transfer
unless the transferee agrees in writing to be bound by this Agreement as if
such transferee were a Stockholder with respect to such transferred
securities and evidences such agreement by executing a joinder agreement
substantially in the form of Exhibit 1 hereto, and, PROVIDED FURTHER, that no
transfer pursuant to the foregoing clauses (i) or (ii) shall be permitted
unless the transferee is an Approved Purchaser.
"GAMING AUTHORITIES" means all governmental authorities or agencies
with regulatory control or jurisdiction over the gaming or gambling
operations of the Company and its Subsidiaries.
"GAMING LAWS" means any Federal, state, local or foreign statute,
ordinance, rule, regulation, permit, consent, approval, license, judgment,
order, decree, injunction or other authorization governing or relating to the
current or contemplated manufacturing, distribution, casino gambling and
gaming activities and operations of the Company and its Subsidiaries.
"IPO" means the closing of a public offering pursuant to an
effective registration statement under the Securities Act covering shares of
the Company's Common Stock, which shares are approved for listing or
quotation on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market.
<PAGE>
"NRS" means the Revised Statutes of the State of Nevada.
"OFFERED SECURITIES" has the meaning provided in Section 2.4(a).
"OFFERING NOTICE" has the meaning provided in Section 2.4(a)(i).
"OFFERING STOCKHOLDER" has the meaning provided in Section 2.4(a).
"PERSON" means an individual, partnership, limited liability
company, joint venture, corporation, trust or unincorporated organization or
any other similar entity.
"QUALIFIED SALE" has the meaning set forth in Section 2.6(a).
"QUALIFIED STOCKHOLDERS" means Charles W. Scharer, Stephen L.
Cavallaro and John J. McLaughlin.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with Section 3.1, including, without
limitation, all registration, filing and NASD fees, all stock exchange
listing fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance
and compliance.
"RELATED PARTY" with respect to any Stockholder means (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Stockholder or
(B) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Stockholder and/or such other
Persons referred to in the immediately preceding clause (A).
"REOFFERED SHARES" has the meaning provided in Section 2.4(a)(iv).
"RESTRICTED SECURITIES" means any Common Stock owned beneficially
or of record by any Stockholder, including, in the case of Employee
Stockholders, any shares of Common Stock that are subject to vesting, and
excluding any securities
<PAGE>
of the Company beneficially owned by Voteco, Colony III or their respective
Affiliates and convertible into, exchangeable for or otherwise providing the
holder thereof any right to acquire shares of Common Stock. In addition, for
purposes of determining a Qualified Stockholder's rights and obligations
under Section 2.5 or Article III hereof in connection with a particular
"tag-along" sale or registration, respectively, a Qualified Stockholder shall
be deemed to have beneficial ownership of shares of Common Stock to be
distributed to such Qualified Stockholder in a Special Distribution Event
under a Deferred Compensation Agreement to which such Qualified Stockholder
is a party to the extent such Special Distribution Event would occur as a
result of such "tag-along" sale or registration, as applicable.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means, with respect to any Person, all other Persons
of which such Person owns, directly or indirectly, a majority of the voting
capital stock or is a general partner or otherwise has the power to control,
by agreement or otherwise, the management and general business affairs of
such other Person.
"TAG-ALONG OFFEROR" has the meaning set forth in Section 2.5(a).
"TAG-ALONG NOTICE" has the meaning provided in Section 2.5(a).
"TAG-ALONG PERCENTAGE" has the meaning provided in Section 2.5(a).
"TAG-ALONG SHARES" has the meaning provided in Section 2.5(a).
"THIRD PARTY" has the meaning provided in Section 2.5(a).
"TRANSFER" has the meaning provided in Section 2.1.
"TRANSFER RESTRICTIONS AGREEMENT" has the meaning provided in
Section 2.5(a).
"TRANSFEREE" has the meaning provided in Section 2.2.
ARTICLE II
RESTRICTIONS ON TRANSFER
<PAGE>
Section 2.1 GENERAL. With respect to each Employee
Stockholder, prior to the earlier of (1) that day following consummation of
an IPO on which any agreement entered into with the underwriter or
underwriters of such IPO restricting the ability of such Stockholder to sell,
assign, hypothecate or otherwise transfer Restricted Securities expires or is
terminated and (2) if no such agreement is entered into, the second business
day following an IPO, no Stockholder shall, directly or indirectly, sell,
assign, hypothecate or otherwise transfer (in each case, a "TRANSFER")
Restricted Securities without the express, written consent of Voteco, which
may be granted or denied at Voteco's sole and absolute discretion.
Notwithstanding the immediately preceding sentence, this Agreement shall not
at any time limit, restrict or apply to (1) any pledge of Restricted
Securities held by an Employee Stockholder to secure obligations to the
Company, (2) any Exempt Transfer or (3) any sale or other disposition of
Restricted Securities by an Employee Stockholder pursuant to Section 2.5.
(a) The Company shall not, and shall not permit any transfer
agent or registrar for the Restricted Securities to, transfer upon the books
of the Company any Restricted Securities purportedly Transferred by any
Stockholder to any purported Transferee, in any manner, unless such purported
Transfer has occurred in accordance with this Agreement, and any such
purported Transfer not in compliance with this Agreement shall be void.
Section 2.2 LEGENDS; SECURITIES SUBJECT TO THIS AGREEMENT. In
the event a Stockholder shall Transfer any Restricted Securities (including
any such Restricted Securities acquired after the date hereof) to any Person
(all Persons acquiring Restricted Securities from a Stockholder, as described
in this Agreement, regardless of the method of transfer, shall be referred to
collectively as "TRANSFEREES" and individually as a "TRANSFEREE") in
accordance with this Agreement, such securities shall nonetheless bear
legends as provided in Section 4.1; PROVIDED that the provisions of this
Section 2.2 shall not apply in respect of a sale of Restricted Securities in
a registered public offering under the Securities Act or pursuant to Rule
144, or any successor rule, under the Securities Act, pursuant to which the
Transferee receives securities that are freely tradeable under the Federal
securities laws.
Section 2.3 NO VIOLATIONS OR BREACH. No Stockholder shall,
directly or indirectly, Transfer any Restricted Securities at any time if
such action would constitute a violation of any Federal or state securities
laws, a breach of the conditions to any exemption from registration of
Restricted Securities under any such laws, a breach of any undertaking or
agreement of such Stockholder entered
<PAGE>
into pursuant to such laws or in connection with obtaining an exemption
thereunder or a violation of any Gaming Laws. In order to enforce the
foregoing, the Company may request that, in addition to any other
documentation reasonably required pursuant to this Agreement, the
transferring Stockholder provide it with a written opinion of counsel, in
form and substance reasonably acceptable to counsel to the Company, to the
effect that such Transfer is exempt from registration under the Federal
securities laws and does not violate any Gaming Laws, and that the transferee
is an Approved Purchaser.
Section 2.4 RIGHT OF FIRST OFFER.
(a) GENERAL. Subject to Section 2.4(c) hereof, each time an
Employee Stockholder proposes to Transfer any Restricted Securities, such
Employee Stockholder (the "OFFERING STOCKHOLDER") shall first make an
offering of such Restricted Securities (referred to collectively herein as
the "OFFERED SECURITIES") to the Company in accordance with the following
provisions:
(i) The Offering Stockholder shall deliver a
notice (the "OFFERING NOTICE") to the Company stating (1) the Offering
Stockholder's bona fide intention to offer such Offered Securities;
(2) the number of shares of such Offered Securities to be offered for
sale; (3) the price and terms, if any, upon which the Offering
Stockholder proposes to offer such Offered Securities; and (4) that
the proposed purchaser (the "PROPOSED PURCHASER") of the Offered
Securities is an Approved Purchaser.
(ii) Within 15 days after the Offering Notice is
given, the Company may elect to purchase from the Offering
Stockholder, at the price and on the terms specified in the Offering
Notice, any or all of the shares of Offered Securities offered in the
Offering Notice. Such right shall be exercised by written notice
delivered to the Offering Stockholder by the Company prior to the
expiration of the 15-day exercise period.
(iii) The closing of the purchase of any
shares of Offered Securities by the Company shall take place at the
principal offices of the Company (or such other location as the
parties may agree on) within fifteen (15) business days after the
expiration of the 15-day period following the giving of the Offering
<PAGE>
Notice on a date and at a time reasonably acceptable to each of the
Company and the Offering Stockholder. At such closing, the Company
shall make payment in the appropriate amount by means of a certified
or cashier's check or a wire transfer for the benefit of the Offering
Stockholder against delivery of certificates representing the
securities so purchased, duly endorsed in blank by the Person or
Persons in whose name such certificate is registered or accompanied by
a duly executed and guarantied stock or security assignment separate
from the certificate. The Company's obligation to effect such payment
shall be conditioned on the delivery of such securities free and clear
of any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, except (a) as created by this Agreement, (b)
with respect to each Qualified Stockholder, the Stock Option and
Restricted Stock Agreement (the "STOCK AGREEMENT") and the Deferred
Compensation Agreement (the "DEFERRED COMPENSATION AGREEMENT"), each
of even date herewith and each between the Company and such Qualified
Stockholder, and (c) with respect to any Employee Stockholder, any
agreement entered into between such Employee Stockholder and the
Company subsequent to the date hereof that is similar to the Stock
Agreement or the Deferred Compensation Agreement.
(iv) In the event the Company does not elect to
purchase any or all of the shares of Offered Securities offered in the
Offering Notice, the Company shall give written notice to Voteco and
Colony III of its decision not to exercise its rights or of the number
of Offered Securities available for purchase (the "REOFFERED SHARES")
on or before the final day of such 15-day period. The right to
purchase such Reoffer Shares shall pass automatically from the Company
to Voteco and Colony III. Voteco and Colony III will have until the
25th day following the Offering Notice to the Company to exercise
their purchase rights under this Section 2.4 by written notice to the
Offering Stockholder and the Company. The closing of any purchase and
sale under this Subsection shall be held within 15 business days
following the exercise by Voteco or Colony III, as the case may be, of
the repurchase rights hereunder at the principal offices of the
Company (or such other location as the parties may agree) on a date
and at a time reasonably acceptable to each of Voteco or Colony III,
as the case may be, and the Offering Stock-
<PAGE>
holder. At such closing, Voteco or Colony III, as the case may be,
shall make payment in the appropriate amount by means of a certified or
cashier's check or a wire transfer for the benefit of the Offering
Stockholder against delivery of certificates representing the securities
so purchased, duly endorsed in blank by the Person or Persons in whose
name such certificate is registered or accompanied by a duly executed
and guarantied stock or security assignment separate from the
certificate. Voteco's or Colony III's obligation to effect such payment
shall be conditioned on the delivery of such securities free and clear
of any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind, except as created by this Agreement, the Award Agreement or
the Deferred Compensation Agreement, except (a) as created by this
Agreement, (b) with respect to each Qualified Stockholder, the Stock
Agreement and the Deferred Compensation Agreement between the Company
and such Stockholder, and (c) with respect to any Employee Stockholder,
any agreement entered into between such Employee Stockholder and the
Company subsequent to the date hereof that is similar to the Stock
Agreement or the Deferred Compensation Agreement.
(b) RIGHT TO SELL. In the event that all of the Offered
Securities being offered are not purchased at the closings referred to in
Subsections (a)(iii) or (a)(iv), the Offering Stockholder shall have the
right to sell or otherwise dispose of all Offered Securities offered in the
Offering Notice and not so purchased at the price stated, and upon other
terms and conditions not materially more favorable to the Proposed Purchaser
in the aggregate than specified, in the Offering Notice. The Offering
Stockholder shall have such right for the 90-day period beginning on the
earlier of the receipt by the Offering Stockholder of notice from Voteco and
Colony III that they elect not to exercise their purchase right under
Subsection (a)(iv) and the closing of a purchase and sale under Subsection
(a)(iv), or such longer period not exceeding six months from the earlier of
the foregoing clauses (i) and (ii) as may be required for the Proposed
Purchaser to become an Approved Purchaser, so long as the Offering
Stockholder reasonably believes that the Proposed Purchaser will become, and
the Proposed Purchaser is exercising bona fide and good faith efforts to
become, an Approved Purchaser in connection with such proposed sale or other
disposition of Offered Securities. In the event that the Offering
Stockholder does not sell or otherwise dispose of such Offered Securities at
the price stated, and upon other terms and conditions not materially more
favorable to the Proposed Purchaser in the aggregate than specified, in the
Offering Notice
<PAGE>
within the period set forth in the previous sentence, the right of first
offer provided for in this Section 2.4 shall continue to be applicable to any
subsequent disposition of such Restricted Securities.
(c) EXCEPTION. Notwithstanding the terms and provisions of
Section 2.4(a) hereof, the right of first offer provided for in this Section
2.4 shall not be applicable to any repurchase of equity securities by the
Company upon the retirement or termination of an Employee Stockholder, except
as set forth in Subsection 2.4(e) below, or any Exempt Transfer and shall
terminate upon the consummation of an IPO.
(d) TRANSFEREES BOUND. In the event that the right of first
offer set forth in this Section 2.4 is not exercised, the purchaser of such
Restricted Securities shall be bound by the terms of this Agreement as
required by Section 2.2.
(e) TERMINATION OF EMPLOYMENT OF EMPLOYEE STOCKHOLDER. If an
Employee Stockholder ceases to be employed by the Company, for any or no
reason, and the repurchase by the Company of Restricted Securities owned by
such Employee Stockholder is not governed by any other agreement between the
Company and such Employee Stockholder, then (1) such Employee Stockholder
shall be deemed an Offering Stockholder, (2) any and all shares of Restricted
Securities owned by such Employee Stockholder (excluding (A) shares that are
subject to vesting but have not vested and (B) shares that are subject to
forfeiture and are forfeited, in each case upon such termination) shall be
deemed Offered Securities, (3) the proposed offer price of such Offered
Securities shall be the "Fair Market Value" of the Offered Securities on the
date of the termination of the Employee Stockholder's employment with the
Company and (4) the provisions of Subsections 2.4(a) to 2.4(d) shall be
applied.
For the purposes of this Agreement, "Fair Market Value" (when
capitalized, unless the context clearly indicates otherwise) means, as to a
Qualified Stockholder, as of any given date, (A) if shares of Common Stock
of the same class as the Offered Securities are publicly traded, the
closing sale price of such shares on such date (or the nearest preceding
date on which the Common Stock was traded) as reported in the Western
Edition of THE WALL STREET JOURNAL, or (B) if shares of Common Stock of the
same class as the Offered Securities are not publicly traded, the fair
market value of the Offered Securities as determined in accordance with the
procedures set forth below, in each case based on the per share value of
the Company as a whole
<PAGE>
as of the relevant date, without any discount for the sale of a minority
interest and without considering lack of liquidity of such Offered
Securities, including transfer and other restrictions on the Offered
Securities:
(1) The Board shall determine the fair market value of the
Offered Securities in good faith, using commercially reasonable
methods and at the Company's sole expense, PROVIDED, that if the
Qualified Stockholder is a member of or non-voting observer on the
Board, he shall recuse himself from all deliberations of the Board
regarding such determination, and except as otherwise provided herein
shall not be entitled to receive or be provided access to any minutes
or other records of the Board with respect to such determination. The
Board shall communicate the per share valuation as so determined in
writing to the Qualified Stockholder within twenty business days of
the date that his employment with the Company is terminated or the
Board takes cognizance of the need to determine the Fair Market Value
of the Common Stock, and, upon his request, shall provide to him
appropriate supporting documentation regarding the methods,
assumptions and other bases used in arriving at such valuation. If
acceptable to the Qualified Stockholder, the fair market value of the
Offered Securities shall be as so determined.
(2) If the fair market value as determined under (1) is not
acceptable to the Qualified Stockholder, he shall determine the fair
market value of the Offered Securities in good faith, using
commercially reasonable methods and at the Qualified Stockholder's
sole expense, and shall communicate the per share valuation (the
"Qualified Stockholder's Value") as so determined in writing to the
Board within 20 business days following the Board's communication to
the Qualified Stockholder of the per share valuation pursuant to
clause (1) above and, upon the Board's request, shall provide to the
Board appropriate supporting documentation regarding the methods,
assumptions and other bases used in arriving at such valuation. If
acceptable to the Board, the fair market value of the Offered
Securities shall be as so determined.
(3) If the fair market value as determined under (2) is not
acceptable to the Board, the Board and the Qualified Stockholder shall
<PAGE>
then negotiate in good faith to agree upon the fair market value of
the Offered Securities, based on the valuations under (1) and (2)
above.
(4) If the Board and the Qualified Stockholder shall be unable
by the foregoing means to agree upon the fair market value of the
Offered Securities within ten business days after the Board has been
advised of the Qualified Stockholder's Value, the issue shall then be
submitted to binding arbitration in Las Vegas, Nevada according to the
rules and procedures of the American Arbitration Association. The
Company and the Qualified Stockholder shall each submit to the
arbitrator their valuations under (1) and (2) above, together with all
supporting documentation regarding the methods, assumptions and other
bases used in arriving at such valuation. The arbitrator shall then
be instructed to choose which of the two valuations more closely
reflects the fair market value of the Offered Securities, and shall
not have the right to choose a third valuation as the appropriate fair
market value of the Offered Securities. The party whose valuation is
not so chosen by the arbitrator shall pay any and all costs and
expenses of the arbitration (but not the initial valuation by the
other party) including without limitation reasonable attorneys' fees
and other fees incurred by the prevailing party in such arbitration.
For the purposes of this Agreement, "Fair Market Value" (when
capitalized, unless the context clearly indicates otherwise) means, as to
the Employee Stockholders other than the Qualified Stockholders, as of any
given date, (A) if shares of Common Stock of the same class as the Offered
Securities are publicly traded, the closing sale price of such shares on
such date (or the nearest preceding date on which the Common Stock was
traded) as reported in the Western Edition of THE WALL STREET JOURNAL, or
(B) if shares of Common Stock of the same class as the Offered Securities
are not publicly traded, the value of the Offered Securities as determined
in good faith by the Board, based upon the per share value of the Company
as a whole, without any discount for sale of a minority interest and
without considering any lack of liquidity of such Offered Securities,
including transfer and other restrictions thereon.
Section 2.5 TAG-ALONG PROVISIONS.
<PAGE>
(a) GENERAL. Subject to the Transfer Restriction Agreement
dated as of the date hereof (the "TRANSFER RESTRICTIONS AGREEMENT") by and among
Mr. Barrack, Mr. Davis, Voteco and Colony III, in the event that Voteco or
Colony III (in such capacity, a "TAG-ALONG OFFEROR") proposes to offer
Restricted Securities to any Person or group of Persons other than an Affiliate
(a "THIRD PARTY" and collectively, "THIRD PARTIES"), such sale or other
disposition shall not be permitted unless the Tag-Along Offeror shall offer (or
cause the Third Party to offer) the Employee Stockholders the right to elect to
include, at the sole option of each Employee Stockholder, in the sale or other
disposition to the Third Party such number of shares of such class or classes of
Restricted Securities that the Tag-Along Offeror proposes to offer that are
owned by such Employee Stockholder as shall be determined in accordance with
Subsection 2.5(a)(i) (the "TAG-ALONG SHARES"). The Tag-Along Offeror shall
deliver a notice (the "TAG-ALONG NOTICE") to the Employee Stockholders stating
(1) the Tag-Along Offeror's bona fide intention to offer such Tag-Along Shares;
(2) the number of shares to be offered for sale; and (3) the price and terms, if
any, upon which the Tag-Along Offeror proposes to offer such Tag-Along Shares.
Notwithstanding any other provision of the Agreement, Voteco and Colony III
shall be permitted to transfer Restricted Securities to each other and to any
Affiliate of either of them, PROVIDED that any subsequent attempted transfer by
such Affiliate of such Restricted Securities shall be subject to this Subsection
2.5(a).
(i) Each Employee Stockholder shall have the
right to sell or include in the Third Party offer up to that
percentage (the "TAG-ALONG PERCENTAGE") of the number of Restricted
Securities owned by such Employee Stockholder (rounded up to the
nearest whole share) equal to the ratio of (1) the number of
Restricted Securities that the Tag-Along Offeror proposes to offer to
the Third Party to (2) the aggregate number of shares of Restricted
Securities owned by the Tag-Along Offeror.
(ii) The purchase from Employee Stockholders
pursuant to this Section 2.5(a) shall be on the same terms and
conditions, including the price per share, the form of consideration
and the date of sale or other disposition, as are received by the
Tag-Along Offeror.
(iii) Promptly (but in no event later than 15
business days) after the consummation of the sale or other disposition
of shares of Restricted Securities of the Tag-Along Offeror
<PAGE>
and the other Stockholders to the Third Party pursuant to the Third
Party offer, the Tag-Along Offeror shall (1) notify such Employee
Stockholders of the completion thereof, (2) cause to be remitted to such
Employee Stockholders the total sales price attributable to the
Tag-Along Shares which such Employee Stockholders sold or otherwise
disposed of pursuant to the Third Party offer, and (3) furnish such
other evidence of the completion and time of completion of such sale or
other disposition and the terms thereof as may be reasonably requested
by the Employee Stockholders.
(iv) If within 15 business days after the Tag-Along
Notice is given, an Employee Stockholder has not accepted the offer to
make an inclusion election, such Employee Stockholder will be deemed to
have waived any and all of its rights with respect to the sale or other
disposition of the Tag-Along Shares described in the Tag-Along Notice.
The Tag-Along Offeror shall have the right to sell or otherwise dispose
of the Restricted Securities of the Tag-Along Offeror to the Third Party
or any other Person upon terms and conditions (including the price per
securities) not materially more favorable to the Tag-Along Offeror than
were set forth in the Tag-Along Notice. The Tag-Along Offeror shall
have such right for the 60-day period beginning on the 15th day after
the Tag-Along Notice is given, or such longer period not exceeding six
months from the 15th day after the Tag-Along Notice is given as may be
required for the Third Party to become an Approved Purchaser, so long as
the Tag-Along Offeror reasonably believes that the Third Party will
become, and the Third Party is exercising bona fide and good faith
efforts to become, an Approved Purchaser in connection with such
proposed sale or other disposition.
(v) If, at the end of such period, the Tag-Along
Offeror has not completed the sale of shares of Restricted Securities of
the Tag-Along Offeror in accordance with the terms of the Third Party's
offer, all the restrictions on sale contained in this Agreement with
respect to Restricted Securities owned by the Tag-Along Offeror shall
again be in effect (unless such period is extended with the consent of
each of the Employee Stockholders).
<PAGE>
(b) EXCEPTION. Notwithstanding any provision herein to the
contrary, Employee Stockholders shall have no right to sell or dispose of
Tag-Along Shares pursuant to Subsection 2.5(a) if Voteco, Colony III or any
Affiliate of either of them, individually or collectively, proposes to sell
to a Third Party or Third Parties any number of shares of Common Stock, if
after such sale Voteco, Colony III and their respective Affiliates own in the
aggregate (x) if on or before an IPO, at least 80 percent of the
then-outstanding common equity of the Company, or (y) if after an IPO, at
least 50 percent of the then-outstanding common equity of the Company, or
shares of Common Stock representing in the aggregate no greater than 20
percent of the aggregate shares of Common Stock held by Voteco or Colony III
as of the date hereof.
(c) TAG-ALONGS BY QUALIFIED STOCKHOLDERS UPON A SPECIAL
DISTRIBUTION EVENT. Each Qualified Stockholder who will receive shares of
Common Stock in a Special Distribution Event under a Deferred Compensation
Agreement to which such Qualified Stockholder is a party, which Special
Distribution Event would arise as a result of the tag-along sale contemplated
by a Tag-Along Notice, shall have the following rights and obligations under
this Section 2.5 with respect to the sale contemplated by the Tag-Along
Notice: (i) if requested in writing by Voteco at the time the Tag-Along
Notice is provided, which request may be made in Voteco's sole and absolute
discretion, each such Qualified Stockholder must participate in the tag-along
sale by including the full Tag-Along Percentage of Restricted Securities
owned by such Qualified Stockholder; or (ii) if no such request is made by
Voteco, each such Qualified Stockholder may elect either (x) to include the
greater of (1) the full Tag-Along Percentage of Restricted Securities owned
by such Qualified Stockholder and (2) the number of shares of Common Stock to
be received by such Qualified Stockholder in the Special Distribution Event
(such number, the "SALE NUMBER"), or (y) to decline to participate in the
tag-along sale and instead to cause the Company to repurchase the Sale Number
of Restricted Securities from such Qualified Stockholder for cash at the same
price per share to be paid by the Third Party to the Tag-Along Offeror;
PROVIDED, that such Qualified Stockholder and the Company will consider in
good faith, as an alternative to such a cash repurchase under this clause
(y), a loan or similar arrangement mutually acceptable to the parties to
provide liquidity to the Qualified Stockholder for taxes resulting from the
Special Distribution Event.
(d) RELATIONSHIP TO SECTION 2.4. Any proposed Transfer by
any Employee Stockholder of Tag-Along Shares pursuant to this Section 2.5 is
exempt from Section 2.4, PROVIDED that Voteco or Colony III shall have the
right to
<PAGE>
acquire the Tag-Along Shares on the same terms and at the same time as such
shares would otherwise be sold to the Third Party.
Section 2.6 COMPANY SALE.
(a) GENERAL. If Voteco, Colony III or their respective
Affiliates propose at any time to sell to a Third Party or Third Parties that
are Approved Purchasers, Restricted Securities representing 90 percent or
more of the then-outstanding common equity of the Company (a "QUALIFIED
SALE") or propose to undertake an IPO, all Employee Stockholders (1) will
consent to and raise no objections against such Qualified Sale or IPO, (2) in
any vote of stockholders required to approve such Qualified Sale, vote the
Restricted Securities held by them in favor of such Qualified Sale, PROVIDED
that this Subsection 2.6(a)(2) shall not be deemed to subject any such
Qualified Sale to any such vote, (3) in such Qualified Sale, will agree to
sell the Restricted Securities held by them at the price and on the terms and
conditions upon which Voteco, Colony III or their respective Affiliates
propose to sell or otherwise dispose of Restricted Securities held by them
and (4) if requested by Voteco, Colony III or their respective Affiliates,
will consent to and raise no objections to any recapitalization or
reclassification of the equity securities of the Company, including any
related amendment to the Articles of Incorporation of the Company, required
to facilitate such Qualified Sale or IPO, PROVIDED that, as to each class of
Common Stock, all shares of such class are treated identically in such
recapitalization, reclassification and/or amendment. The Employee
Stockholders will take all actions in their capacity as stockholders that
Voteco, Colony III or their respective Affiliates reasonably deem necessary
or desirable in connection with the consummation of the Qualified Sale or
IPO, PROVIDED that, in connection with an IPO, any Employee Stockholder
employed by the Company at the time of such IPO shall not be required to be
subject to "lock-up" restrictions that are more restrictive than such
restrictions to which any other Employee Stockholder having commensurate job
duties and responsibilities in the Company is subject, and any Employee
Stockholder not employed by the Company at the time of such IPO shall not be
required to be subject to "lock-up" restrictions that are more restrictive
than such restrictions to which any other Stockholder is subject, and
PROVIDED FURTHER that, in connection with a Qualified Sale, the Employee
Stockholders shall not be required to be subject to "lock-up" restrictions
that are more restrictive than such restrictions to which any other
Stockholder is subject. Without limiting the generality of the foregoing, it
is expressly agreed that, in respect of a Qualified Sale or IPO in accordance
with this Section 2.6, no Stockholder will assert any "dissenters'" or
similar statutory or legal right, or otherwise assert any challenge to, such
Qualified Sale.
<PAGE>
(b) SAME CONSIDERATION TO ALL STOCKHOLDERS. The obligations
of the Employee Stockholders with respect to a Qualified Sale are subject to
the satisfaction of the condition that, upon the consummation of the
Qualified Sale, all of the holders of Restricted Securities will receive the
same form and amount of consideration per share of Restricted Securities, and
if any holders of Restricted Securities are given an option as to the form
and amount of consideration to be received, all holders will be given the
same option, it being understood that if required by applicable law,
appropriate tax withholdings shall be deducted.
(c) SECURITIES LAW COMPLIANCE. If Voteco and Colony III
enter into any negotiation or transaction for which Rule 506 under the
Securities Act (or any similar rule then in effect) may be available with
respect to such negotiation or transaction, such Employee Stockholders as
Voteco or Colony III may request will, upon such request, appoint a purchaser
representative (as such term is defined in Rule 501 under the Securities Act)
reasonably acceptable to Voteco and Colony III. If any Employee Stockholder
appoints a purchaser representative at the request of the Company, the
Company will pay the fees of such purchaser representative.
Section 2.7 PROPORTIONAL HOLDING REQUIREMENT. Notwithstanding
any provision herein to the contrary, in no case shall any Employee
Stockholder transfer Restricted Securities if, after giving effect to and as
a result of such transfer, such Employee Stockholder would hold a number of
shares of Class A Common and Class B Common other than in equal proportion to
the number of shares of Class A Common and Class B Common then outstanding,
respectively.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1 INCIDENTAL REGISTRATION. If, after an IPO, the
Company proposes to register any of its Common Stock under the Securities Act
in connection with a public offering of such securities solely for cash
(other than by a registration in connection with an acquisition or in a
manner which would not permit registration of Restricted Securities), it will
each such time give prompt written notice to all holders of Restricted
Securities of such holders' rights under this Section 3.1. Upon the written
request of any such holder received by the Company within 15 days after the
receipt of any such notice (which request shall specify the Restricted
Securities intended to be disposed of by such holder and the intended method
of disposition thereof), the Company will, subject to the terms of this
Agreement, use its best
<PAGE>
efforts to effect the registration under the Securities Act of all Restricted
Securities which the Company has been so requested to register by the holders
thereof, to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Restricted Securities
to be so registered, by inclusion of such Restricted Securities in the
registration statement which covers the securities which the Company proposes
to register, PROVIDED that, if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason either not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Restricted Securities,
and thereupon the Company (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Restricted Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses therewith) and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering Restricted
Securities, for the same period as the delay in registering such other
securities. Notwithstanding the foregoing, during the first two years
following an IPO (or, in the case of a Qualified Stockholder, at any time if
the circumstances of the proposed registration or the sale of securities
contemplated thereby gives rise to a Special Distribution Event under a
Deferred Compensation Agreement to which such Qualified Stockholder is a
party), Restricted Securities held by an Employee Stockholder shall not be
eligible for incidental registration rights hereunder and shall not be
includible in any such registration statement unless Voteco, Colony or their
respective Affiliates are also including Restricted Securities in such
registration statement. In the event that during the first two years
following an IPO, Voteco, Colony or their respective Affiliates are including
Restricted Securities in a registration statement to which incidental
registration rights under this Section 3.1 otherwise apply, then each
Employee Stockholder shall be entitled to incidental registration rights
hereunder only with respect to that number of Restricted Securities bearing
the same proportion to all of his Restricted Securities as the Restricted
Securities to be registered by Voteco, Colony and their respective Affiliates
bears to all Restricted Securities owned by Voteco, Colony and their
respective Affiliates in the aggregate. The Company will pay all Registration
Expenses in connection with each registration of Restricted Securities
requested pursuant to this Section 3.1.
Section 3.2 PRIORITY IN INCIDENTAL REGISTRATIONS. If the
Company reasonably determines that the distribution of all or a specified
number of such Restricted Securities concurrently with the other securities
being distributed in the proposed registration would interfere with the
successful marketing thereof (such
<PAGE>
determination to state the basis of such belief and the approximate number of
such Restricted Securities which may be distributed without such effect), the
Company may, upon written notice to all holders of such Restricted
Securities, reduce pro rata the number of such Restricted Securities so that
the resultant aggregate number of such Restricted Securities so included in
such registration shall be equal to the number of shares stated in such
determination. The Company shall not enter into any agreement that would
result in either the number of Restricted Securities held by Employee
Stockholders to be included in a registration pursuant to Section 3.1 being
reduced pursuant to the foregoing sentence prior to any similar reduction of
shares of Common Stock held by any other holder to be included in such
registration pursuant to incidental registration rights, or (b) the reduction
rate provided for in the foregoing sentence with respect to the Restricted
Securities held by Employee Stockholders being greater than the reduction
rate applicable to Common Stock of any other holder to be included in such
registration pursuant to incidental registration rights.
ARTICLE IV
MISCELLANEOUS
Section 4.1 LEGEND. The certificates representing the Restricted
Securities to be held by each of the Stockholders shall bear the following
legend in addition to any other legend that may be required from time to time
under applicable law or pursuant to any other contractual obligation:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF (A "TRANSFER")
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF A STOCKHOLDERS AGREEMENT
DATED AS OF FEBRUARY 2, 1999. ANY TRANSFEREE OF THESE SECURITIES
TAKES SUBJECT TO THE TERMS OF SUCH AGREEMENT, A COPY OF WHICH IS ON
FILE WITH THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR STATE
SECURITIES LAWS, AND NO TRANSFER OF THESE SECURITIES MAY BE MADE
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
<PAGE>
STATEMENT UNDER THE ACT, OR (B) PURSUANT TO AN EXEMPTION THEREFROM WITH
RESPECT TO WHICH THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY
OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE
REQUIREMENTS OF THE ACT.
Each of the parties hereto agrees that it will not transfer any
Restricted Securities without complying with each of the restrictions set
forth herein and agrees that in connection with any such transfer it will, if
requested by the Company, deliver at its expense to the Company an opinion of
counsel, in form and substance reasonably satisfactory to the Company and
counsel for the Company, that such transfer is not in violation of the
securities laws of the United States of America or any state thereof or any
Gaming Laws.
Section 4.2 NOTICES. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier (providing
proof of delivery) to each party at the address of such party set forth below
such party's signature on this Agreement or to such address as the party to
whom notice is to be given may provide by like notice to each of the other
parties to this Agreement, a copy of which notice shall be on file with the
Secretary of the Company.
Section 4.3 INTERPRETATION. When a reference is made in this
Agreement to an Article, Section or Schedule, such reference shall be to an
Article or Section of or a 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"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The Transfer Restrictions
Agreement and the transactions contemplated by it are transactions
contemplated by this Agreement. To the extent any restriction on the
activities of the Company or its Subsidiaries under the terms of this
Agreement requires prior approval under any Gaming Law, such restriction
shall be of no force or effect unless and until such approval is obtained.
If any provision of this Agreement is illegal or unenforceable under any
Gaming Law, such provision shall be void and of no force or effect.
<PAGE>
Section 4.4 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
Section 4.5 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES.
This Agreement constitutes the entire agreement, and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this agreement and are not intended to
confer upon any Person other than the parties any rights or remedies
hereunder.
Section 4.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA, WITHOUT
REGARD TO ANY APPLICABLE CONFLICTS OF LAW.
Section 4.7 GAMING LAWS. Each of the provisions of this
Agreement is subject to and shall be enforced in compliance with the Gaming
Laws.
Section 4.8 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, PROVIDED that Voteco
and Colony III may assign, in its sole discretion, any of or all its rights,
interests and obligations under this Agreement to any affiliate of Colony
Capital, Inc. that assumes Voteco's and Colony III's obligations hereunder;
PROVIDED FURTHER that, notwithstanding any provision of this Agreement, no
consent of the parties hereto shall be required under this Section 4.8 for
the Company to consummate a merger or consolidation so long as such surviving
corporation assumes the Company's obligations hereunder. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
Section 4.9 ENFORCEMENT. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court
of the United States located in the State of Nevada or in Nevada state court,
this being in addition to any other remedy to which
<PAGE>
they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to commit itself to the personal jurisdiction of any
Federal court located in the State of Nevada or any Nevada state court in the
event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action relating
to this Agreement or any of the transactions contemplated by this Agreement
in any court other than a Federal or state court sitting in the State of
Nevada.
Section 4.10 AMENDMENTS AND WAIVERS. Except as expressly
provided herein, this Agreement may not be amended except by an instrument in
writing signed on behalf of the holders of not less than a majority of all
shares of Restricted Stock held by all Stockholders, PROVIDED that the
approval of Voteco shall be required in any event; PROVIDED FURTHER that any
amendment that (i) affects the rights of holders of any class of Common
Stock, which amendment does not equally affect the rights of all holders of
shares of such class equally on a per share basis, and (ii) affects adversely
the rights of any Employee Stockholder hereunder, shall require the written
consent of Employee Stockholders holding at least a majority of all
Restricted Securities held by Employee Stockholders; and PROVIDED FURTHER any
amendment shall not affect the rights as a holder of Restricted Securities of
any Employee Stockholder more adversely than any other Employee Stockholder.
Voteco shall not enter into any agreement or other arrangement in
contemplation or connection with such amendment or waiver with any individual
Employee Stockholder that is related to the matters governed by this
Agreement unless such agreement applies equally or pro rata to all Employee
Stockholders. The agreement or consent of the Company shall not be required
to amend this agreement
Section 4.11 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms to the fullest extent permitted by law.
Section 4.12 CUMULATIVE REMEDIES. All rights and remedies of
either party hereto are cumulative of each other and of every other right or
remedy such party may otherwise have at law or in equity, and the exercise of
one or more rights or remedies shall not prejudice or impair the concurrent
or subsequent exercise of other rights or remedies.
<PAGE>
Section 4.13 ARBITRATION; DISPUTE RESOLUTION PROCESS. The
parties hereby agree that, in order to obtain prompt and expeditious
resolution of any disputes under this Agreement, each claim, dispute or
controversy of whatever nature, arising out of, in connection with, or in
relation to the interpretation, performance or breach of this Agreement (or
any other agreement contemplated by or related to this Agreement), including
without limitation any claim based on contract, tort or statute, or the
arbitrability of any claim hereunder (an "ARBITRABLE CLAIM"), shall be
settled, at the request of any party of this Agreement, exclusively by final
and binding arbitration conducted in Las Vegas, Nevada. All such Arbitrable
Claims shall be settled by three arbitrators in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association (the "CAR"). EACH PARTY HERETO EXPRESSLY CONSENTS TO, AND WAIVES
ANY FUTURE OBJECTION TO, SUCH FORUM AND ARBITRATION RULES. Judgment upon any
award may be entered by any state or Federal court having jurisdiction
thereof. Except as required by law (including, without limitation, the rules
and regulations of the Commission and any stock exchange or quotation system
which the Restricted Securities are listed on or qualified for inclusion in),
no party nor the arbitrator shall disclose the existence, content, or results
of any arbitration hereunder without the prior written consent of all
parties. Except as provided herein, the Nevada Revised Statutes shall govern
the interpretation, enforcement and all proceedings pursuant to this Section
4.13.
The arbitrators referenced herein shall provide a written statement
to all parties to this Agreement setting forth the substantive basis of such
arbitrators' resolution of any Arbitrable Claim.
Adherence to this dispute resolution process shall not limit the
right of the parties hereto to obtain any provisional remedy, including
without limitation, injunctive or similar relief, from any court of competent
jurisdiction as may be necessary to protect their respective rights and
interests pending arbitration. Notwithstanding the foregoing sentence, this
dispute resolution procedure is intended to be the exclusive method of
resolving any Arbitrable Claims arising out of or relating to this Agreement.
The parties further agree that the nature, scope and timing of any
production of documents or other information or witness in respect of the
resolution of any Arbitrable Claim pursuant to this Section 4.13 shall be in
accordance with the CAR.
The arbitration procedures shall follow the substantive law of the
State of Nevada, including the provisions of statutory law dealing with
arbitration, as
<PAGE>
it may exist at the time of the demand for arbitration, insofar as said
provisions are not in conflict with this Agreement and specifically excepting
therefrom sections of any such statute dealing with discovery and sections
requiring notice of the hearing date by registered or certified mail.
Section 4.14 WAIVER OF JURY TRIAL. Consistent with Section 4.13,
each signatory to this Agreement further waives its respective right to a
jury trial of any claim or cause of action arising out of this Agreement or
any dealings between any of the signatories hereto relating to the subject
matter of this Agreement. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this Agreement, including, without
limitation, contract claims, tort claims, and all other common law and
statutory claims. This waiver is irrevocable, meaning that it may not be
modified either orally or in writing, and this waiver shall apply to any
subsequent amendments, supplements or other modifications to this Agreement
or to any other document or agreement relating to the transactions
contemplated by this Agreement.
Section 4.15 TERM. (a) Unless earlier terminated by an
instrument in writing amending this Agreement pursuant to Section 4.10, this
Agreement shall terminate if (1) Employee Stockholders or their Related
Parties no longer beneficially own any shares of Restricted Securities or (2)
Voteco, Colony III or their respective Affiliates own Restricted Securities
representing less than 25 percent of the then-outstanding common equity of
the Company (except if any purported Transfer of such Restricted Securities
that results a condition set forth in clause (1) or (2) is in violation of
this Agreement).
(b) Any Employee Stockholder, upon ceasing to beneficially
own any shares of Restricted Securities, shall cease to be party to or have
any rights under this Agreement.
Section 4.16 REPRESENTATION BY COUNSEL. Each party hereto
represents and agrees with each other that it has been represented by or had
the opportunity to be represented by, independent counsel of its own
choosing, and that it has had the full right and opportunity to consult with
its respective attorney(s), that to the extent, if any, that it desired, it
availed itself of this right and opportunity, that it or its authorized
officers (as the case may be) have carefully read and fully understand this
Agreement in its entirety and have had it fully explained to them by such
party's respective counsel, that each is fully aware of the contents thereof
and its meaning, intent and legal effect, and that it or its authorized
officer (as the case may be) is
<PAGE>
competent to execute this Agreement and has executed this Agreement free from
coercion, duress or undue influence. The parties to this Agreement
participated jointly in the negotiation and drafting of this Agreement. If
an ambiguity or question of intent or interpretation arises, then this
Agreement will be construed as if drafted jointly by the parties to this
Agreement, and no presumption or burden of proof will arise favoring or
disfavoring any party to this Agreement by virtue of the authorship of any of
the provisions of this Agreement.
Section 4.17 RELATIONSHIP TO OTHER AGREEMENTS. The provisions of
this Agreement shall be in addition to, and shall not be affected (except as
expressly provided herein) by, the provisions of the Stock Agreement and the
Deferred Compensation Agreement that the Company has entered into with each
Qualified Stockholder as of the date hereof and any modification thereof, or
the provisions of any other agreement that such parties may enter into
hereafter.
(Signature pages follow)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
HARVEYS CASINO RESORTS
By: /s/ JOHN J. MCLAUGHLIN
-----------------------------------
Name: John J. McLaughlin
Title: Senior Vice President, Chief
Financial Officer, Treasurer
ADDRESS: Highway 50 and Stateline Avenue
Lake Tahoe, Nevada 89449
Attn: President
COLONY HCR VOTECO, LLC
By: /s/ KELVIN L. DAVIS
----------------------------------
Name: Kelvin L. Davis
Title: Member
ADDRESS: 1999 Avenue of the Stars, Suite 1200
Los Angeles, California 92718
Telecopy: (310) 282-8813
STOCKHOLDERS AGREEMENT
<PAGE>
COLONY INVESTORS III, L.P.
By: COLONY CAPITAL III, L.P.,
its general partner
By: COLONY GP III, INC.,
its general partner
By: /s/ KELVIN L. DAVIS
------------------------------
Name: Kelvin L. Davis
Title: President and Chief
Operating Officer
ADDRESS: 1999 Avenue of the Stars,
Suite 1200
Los Angeles, California 92718
Telecopy: (310) 282-8813
/s/ CHARLES W. SCHARER
------------------------------
CHARLES W. SCHARER
ADDRESS: c/o Harveys Casino Resorts
Highway 50 and Stateline Avenue
Lake Tahoe, Nevada 89449
/s/ STEPHEN L. CAVALLARO
-----------------------------------
STEPHEN L. CAVALLARO
ADDRESS: c/o Harveys Casino Resorts
Highway 50 and Stateline Avenue
Lake Tahoe, Nevada 89449
STOCKHOLDERS AGREEMENT
<PAGE>
/s/ JOHN J. MCLAUGHLIN
------------------------------
JOHN J. MCLAUGHLIN
ADDRESS: c/o Harveys Casino Resorts
Highway 50 and Stateline Avenue
Lake Tahoe, Nevada 89449
STOCKHOLDERS AGREEMENT
<PAGE>
SCHEDULE A
LIST OF STOCKHOLDERS
Colony HCR Voteco, LLC
Colony Investors III, L.P.
Charles W. Scharer
Stephen L. Cavallaro
John J. McLaughlin
Gary D. Armentrout*
Edward B. Barraco*
John R. Bellotti*
James J. Rafferty*
Kevin O. Servatius*
Verne H. Welch, Jr.*
- ---------------
* To be party by Joinder dated no later than February 9, 1999.
<PAGE>
EXHIBIT 1
[FORM OF]
STOCKHOLDERS AGREEMENT JOINDER
As of the date set forth below, the undersigned is [acquiring from
_______________________ (" ")][being issued] [options to acquire]
__________ shares of the _________________ Stock (the "SHARES"), of Harvey
Casino Resorts (the "COMPANY"). By execution of this Stockholders Agreement
Joinder, the undersigned[, as successor to _______ in respect of the Shares,]
shall be deemed to be a party to that certain Stockholders Agreement, dated as
of February 2, 1999, by and between the Company and the Stockholders identified
therein (the "STOCKHOLDERS AGREEMENT"). Pursuant to Section 4.8 (but subject to
Sections 2.2 and 2.3) of the Stockholders Agreement, the undersigned[, as
successor to _______ in respect of the Shares,] shall have all rights, and shall
observe all the obligations, applicable to a "STOCKHOLDER" as set forth in the
Stockholders Agreement. In order to give effect to this transaction, please add
the undersigned to the list of "Stockholders" as set forth in Schedule A to the
Stockholders Agreement.
Name: __________________________
ADDRESS:
By: ____________________________
Name:
Title:
Date:
<PAGE>
EXHIBIT 4
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange ct of
1934, as amended, each of the persons named below agreed to the joint filing
on behalf of each of them of a Statement on Schedule 12D (including
amendments thereto) with respect to the common stock, par value $.01 per
share, of Harveys Casino Resorts, a Nevada corporation, and further agrees
that this Joint Filing Agreement be included as an exhibit to such filings
provided that, as contemplated by Section 13d-1(f)(1)(ii), no person shall be
responsible for the completeness or accuracy of the information concerning
the other persons making the filing, unless such person knows or has reason
to believe that such information is inaccurate. This Joint Filing Agreement
may be executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument.
Date: February 9, 1999
COLONY HCR VOTECO, LLC
By: /s/ KEVIN L. DAVIS
------------------------------
Kevin L. Davis
/s/ KEVIN L. DAVIS
------------------------------
Kevin L. Davis
/s/ THOMAS J. BARRACK, JR.
------------------------------
Thomas J. Barrack, Jr.
