<PAGE>
THIS DOCUMENT IS AN ELECTRONIC CONFIRMING COPY OF THE INITIAL STATEMENT ON
SCHEDULE 13D FILED WITH THE COMMISSION ON JANUARY 9, 1995,
BY ARTHUR M. GOLDBERG AND NUGGET PARTNERS, L.P.
SECURITIES UNITED STATES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. ____)*
Bally Entertainment Corporation
- --------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.66-2/3 Par Value 05873C106
- ----------------------------------- -----------------------------------
(Title of Class of Securities) (CUSIP Number)
Dennis J. Block, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, N.Y. 10153
(212) 310-8000
- --------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
December 30, 1994
- --------------------------------------------------------------------------
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [_].
Check the following box if a fee is being paid with the statement [_].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five
percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
<PAGE>
<PAGE>
CUSIP No. 05873C106 13D
1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. Arthur M. Goldberg
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(See response to Item 5) (b) [_]
---
3 SEC USE ONLY
4 SOURCE OF FUNDS:* OO (See response to Item 3)
---
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E):
6 CITIZENSHIP OR PLACE OF United States
ORGANIZATION:
7 SOLE VOTING POWER: 3,891,705
NUMBER OF (See response to Item 5)
SHARES ---
BENEFICIALLY 8 SHARED VOTING POWER: None
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 3,891,705 shares
REPORTING (See response to Item 5)
PERSON WITH ---
10 SHARED DISPOSITIVE None
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 3,891,705 shares
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES: (See response to Item 5)
---
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 8.3%
14 TYPE OF REPORTING PERSON:* IN
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
<PAGE>
CUSIP No. 05873C106 13D
1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. Nugget Partners, L.P.
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(See response to Item 5) (b) [_]
---
3 SEC USE ONLY
4 SOURCE OF FUNDS:* WC (See response to Item 3)
---
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E):
6 CITIZENSHIP OR PLACE OF New Jersey
ORGANIZATION:
7 SOLE VOTING POWER: None
NUMBER OF (See response to Item 5)
SHARES ---
BENEFICIALLY 8 SHARED VOTING POWER: 736,300
OWNED BY (See response to Item 5)
EACH ---
REPORTING 9 SOLE DISPOSITIVE POWER: None
PERSON WITH (See reponse to Item 5)
---
10 SHARED DISPOSITIVE 736,300 shares
POWER: (See response to Item 5)
---
11 AGGREGATE AMOUNT BENEFICIALLY 736,000 shares
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.6%
14 TYPE OF REPORTING PERSON:* PN
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
<PAGE>
Item 1. Security and Issuer.
-------------------
This statement on Schedule 13D relates to the common stock,
par value $0.66-2/3 per share (the "Common Stock"), of Bally Entertainment
Corporation, a Delaware corporation (the "Issuer"). The address of
the Issuer's principal executive office is 8700 West Bryn Mawr Avenue,
Chicago, Illinois 60631.
Item 2. Identity and Background.
------------------------
The persons filing this statement on Schedule 13D are Arthur
M. Goldberg and Nugget Partners, L.P., a New Jersey limited
partnership whose sole general partner is Mr. Goldberg ("Nugget
Partners", and together with Mr. Goldberg, collectively, the "Filing
Persons").
Mr. Goldberg's business address is c/o DiGiorgio
Corporation, 2 Executive Drive, Suite 400, Somerset, New Jersey 08873.
Mr. Goldberg's present principal occupation or employment involves
serving as the Chairman of the Board of Directors, President and Chief
Executive Officer of the Issuer (a holding company of various
operating subsidiaries which are involved in the operation of casino
resorts and the operation of health and fitness centers) and a
director and executive officer of a number of the Issuer's direct and
indirect wholly owned subsidiaries; the Chairman of the Board of
Directors, President and Chief Executive Officer of DiGiorgio
Corporation (a food distributor with principal offices located at 2
Executive Drive, Suite 400, Somerset, New Jersey 08873); and Managing
Partner of Arveron Investments L.P. (engaged in the business of
securities investing with principal
NYFS04...:\30\20130\0001\2042\SCH1065K.070
<PAGE>
<PAGE>
offices located at 2 Executive Drive, Suite 400, Somerset, New Jersey
08873). Mr. Goldberg is a citizen of the United States.
Nugget Partners' principal business is acquiring, owning and
investing in securities, including shares of the Common Stock of the
Issuer. The principal place of business and principal office of
Nugget Partners is located at 2 Executive Drive, Suite 400, Somerset,
New Jersey 08873.
During the past five years, neither of the Filing Persons
have (a) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or (b) 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 a finding of any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The Filing Persons' response to Item 5 of this Schedule 13D
is incorporated herein by reference.
Mr. Goldberg was awarded the immediately exercisable options
to purchase 1,650,000 shares of Common Stock which he directly owns
under the Issuer's stock option plans pursuant to grants made at
various times from July 1991 through September 1993.
Mr. Goldberg acquired the 1,505,405 shares of Common Stock
which he directly owns pursuant to the terms of a Stock Subscription
Agreement, dated as of
<PAGE>
<PAGE>
December 30, 1994 (the "Agreement"), among Bally's Casino, Inc., a
Delaware corporation and a wholly owned subsidiary of the Issuer
("Casino"), Mr. Goldberg, the Issuer and Orloff, Lowenbach, Stifelman
& Siegel, P.A., as escrow agent. Pursuant to the Agreement, among
other things, Casino agreed to issue to Mr. Goldberg, 1,685,994 shares
of Casino's Series A Cumulative Exchangeable Preferred Stock, par
value $1.00 per share (the "Casino Preferred Shares"), which are
immediately exchangeable, at Mr. Goldberg's option, for 1,505,405
shares of Common Stock of the Issuer, in exchange for 752,676 shares
of common stock, par value $0.01 per share, of Bally's Grand, Inc., a
Delaware corporation, which are directly owned by Mr. Goldberg (the
"Goldberg Shares"). The consummation of the transaction is subject to
the receipt, on or prior to February 15, 1995, of (i) a written
opinion from a nationally recognized investment banking firm to the
effect that the exchange of the Goldberg Shares for the Casino
Preferred Shares is fair to the Issuer from a financial point of view,
and (ii) approval of the New Jersey Casino Control Commission of the
transactions contemplated by the Agreement.
Nugget Partners acquired the 736,300 shares of Common Stock
which it directly owns in 1990 for a total consideration of
$7,073,868.60, including commissions, using partnership working
capital funds.
Item 4. Purpose of Transaction.
----------------------
The Filing Persons' response to Item 3 of this Schedule 13D,
insofar as it relates to the Agreement, is hereby incorporated by
reference in this response. The Filing
<PAGE>
<PAGE>
Persons have acquired the shares of Common Stock which they
beneficially own for investment purposes only. The Filing Persons
reserve the right to purchase additional shares of Common Stock from
time to time in the open market, in privately negotiated transactions
with third parties or otherwise, subject to and depending upon
availability at prices deemed favorable by the Filing Persons.
Alternatively, the Filing Persons additionally reserve the right to
dispose of the Common Stock beneficially owned by them in the open
market, in privately negotiated transactions with third parties or
otherwise, depending upon market conditions prevailing at the time and
other factors then deemed relevant. Except as set forth above, the
Filing Persons have no present plans or intentions which would result
in or relate to any of the transactions described in subparagraphs (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
------------------------------------
(a) Items 7 through 11 and 13 of the cover pages of this
Schedule 13D which relate to the beneficial ownership of Common Stock
of the Issuer by the Filing Persons are hereby incorporated by
reference in this response. The Filing Persons' response to Item 3 of
this Schedule 13D, insofar as it relates to the Agreement, is also
incorporated by reference in this response.
As of December 30, 1994, (i) Mr. Goldberg directly owned
immediately exercisable options to purchase 1,650,000 shares of Common
Stock and 1,505,405 shares of Common Stock as a result of the
Agreement, collectively constituting approximately 6.7% of
<PAGE>
<PAGE>
the outstanding shares of Common Stock, and (ii) Nugget Partners
directly owned 736,300 shares of Common Stock, constituting
approximately 1.6% of the outstanding shares of Common Stock. Such
percentages are based upon 46,928,660 shares of Common Stock
outstanding as of November 1, 1994, as set forth in the Issuer's
Quarterly Report on Form 10-Q for the quarterly period ended September
30, 1994, as filed with the Commission.
As a result of Mr. Goldberg being the sole general partner
of Nugget Partners, Mr. Goldberg may be deemed the beneficial owner
(as defined in Rule 13d-3 promulgated by the Commission under the
Securities Exchange Act of 1934, as amended) of the shares of Common
Stock directly owned by Nugget Partners. Accordingly, Mr. Goldberg
may be deemed to be the beneficial owner of 3,891,705 shares of Common
Stock, constituting approximately 8.3% of the outstanding shares
of Common Stock based upon 46,928,660 shares of Common Stock
outstanding as of November 1, 1994.
(b) Items 7 through 10 of the cover pages of this Schedule
13D which relate to the Filing Persons' voting and dispositive power
with respect to the shares of the Common Stock which they beneficially
own are hereby incorporated by reference in this response.
(c) The Filing Persons' response to Item 3 of this Schedule
13D, insofar as it relates to the Agreement, is incorporated by
reference in this response. Neither of the Filing Persons has
effected any other transaction in the Common Stock during the past
sixty (60) days.
(d) Not applicable.
<PAGE>
<PAGE>
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
----------------------------------------
The Filing Persons' response to Item 3 of this Schedule 13D,
insofar as it relates to the Agreement, is hereby incorporated by
reference in this response.
Mr. Goldberg directly owns immediately exercisable options
to purchase 1,650,000 shares of Common Stock. In addition, Mr.
Goldberg has been awarded options to purchase 450,000 shares of Common
Stock under the Issuer's stock option plans which are not exercisable
within sixty days. Included in these additional option awards are
options to purchase 35,000 shares of Common Stock which are subject to
the approval of the Issuer's stockholders.
The Filing Persons have entered into an agreement with one
another with respect to the joint filing of this statement on Schedule
13D.
Except for the information set forth in this Schedule 13D,
neither of the Filing Persons is a party to any contract, arrangement,
understanding or relationship with respect to securities of the
Issuer.
Item 7. Materials to Be Filed as Exhibits
---------------------------------
Stock Subscription Agreement, Exhibit 99.A (CE)
dated as of December 30, 1994,
among Bally's Casino, Inc.,
Arthur M. Goldberg, Bally
Entertainment Corporation and
Orloff, Lowenbach, Stifelman &
Siegel, P.A.
<PAGE>
<PAGE>
Certificate of the Exhibit 99.B (CE)
Designations, Preferences and
Relative, Participating,
Optional or Other Special
Rights of the Series A
Cumulative Exchangeable
Preferred Stock, Par Value
$1.00 Per Share, of Bally's
Casino, Inc.
Award Agreement (Non-Qualified Exhibit 99.C (CE)
Stock Option), dated as of
July 9, 1991, between Bally
Entertainment Corporation
(f/k/a Bally Manufacturing
Corporation) and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.D (CE)
Stock Option), dated as of
July 9, 1991, between Bally
Entertainment Corporation and
Arthur M. Goldberg
Amended and Restated Award Exhibit 99.E (CE)
Agreement (Non-Qualified Stock
Option in tandem with Stock
Appreciation Rights), dated as
of March 25, 1991, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.F (CE)
Stock Option), dated as of
September 30, 1993, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.G (CE)
Stock Option), dated as of
November 9, 1994, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.H (CE)
Stock Option), dated as of
November 9, 1994, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
<PAGE>
<PAGE>
Agreement Regarding Joint Exhibit 99.I (CE)
Filing of Schedule 13D, dated
January 6, 1995, between
Arthur M. Goldberg and Nugget
Partners, L.P.
<PAGE>
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of his and its
knowledge and belief, the undersigned certify that the information set
forth in this statement is true, complete and correct.
Dated: January 6, 1995
/s/ Arthur M. Goldberg
----------------------------------------
Arthur M. Goldberg
NUGGET PARTNERS, L.P.
By: /s/ Arthur M. Goldberg
-------------------------------------
Arthur M. Goldberg
General Partner
<PAGE>
<PAGE>
EXHIBIT INDEX
-------------
DESCRIPTION EXHIBIT NO
----------- ----------
Stock Subscription Agreement, Exhibit 99.A (CE)
dated as of December 30, 1994,
among Bally's Casino, Inc.,
Arthur M. Goldberg, Bally
Entertainment Corporation and
Orloff, Lowenbach, Stifelman &
Siegel, P.A.
Certificate of the Exhibit 99.B (CE)
Designations, Preferences and
Relative, Participating,
Optional or Other Special
Rights of the Series A
Cumulative Exchangeable
Preferred Stock, Par Value
$1.00 Per Share, of Bally's
Casino, Inc.
Award Agreement (Non-Qualified Exhibit 99.C (CE)
Stock Option), dated as of
July 9, 1991, between Bally
Entertainment Corporation
(f/k/a Bally Manufacturing
Corporation) and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.D (CE)
Stock Option), dated as of
July 9, 1991, between Bally
Entertainment Corporation and
Arthur M. Goldberg
Amended and Restated Award Exhibit 99.E (CE)
Agreement (Non-Qualified Stock
Option in tandem with Stock
Appreciation Rights), dated as
of March 25, 1991, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.F (CE)
Stock Option), dated as of
September 30, 1993, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.G (CE)
Stock Option), dated as of
November 9, 1994, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
Award Agreement (Non-Qualified Exhibit 99.H (CE)
Stock Option), dated as of
November 9, 1994, between
Bally Entertainment
Corporation and Arthur M.
Goldberg
<PAGE>
<PAGE>
EXHIBIT INDEX
-------------
DESCRIPTION EXHIBIT NO
----------- ----------
Agreement Regarding Joint Exhibit 99.I (CE)
Filing of Schedule 13D, dated
January 6, 1995, between
Arthur M. Goldberg and Nugget
Partners, L.P.
<PAGE>
EXHIBIT 99.A (CE)
-----------------
STOCK SUBSCRIPTION AGREEMENT
----------------------------
This Stock Subscription Agreement (the "Subscription
Agreement") dated as of the 30th day of December, 1994, is entered
into by and among Bally's Casino, Inc., a Delaware corporation
("Casino"), Arthur M. Goldberg ("Goldberg"), Bally Entertainment
Corporation, a Delaware corporation ("BEC") and Orloff, Lowenbach,
Stifelman & Siegel, P.A., a professional corporation (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, Casino was formed to serve as a holding company for
certain of the gaming operations of BEC;
WHEREAS, BEC intends to subscribe for, and Casino intends to
issue 100 shares of Casino's common stock, par value $1.00 per share
("Common Shares");
WHEREAS, Goldberg intends to subscribe for, and Casino
intends to issue to Goldberg One Million Six Hundred Eighty-Five
Thousand Nine Hundred Ninety-Four (1,685,994) shares of Casino's
Series A Cumulative Exchangeable Preferred Shares, par value $1.00 per
share (the "Shares"), on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Authorized Capital Stock. The authorized capital stock
------------------------
of Casino consists of One Thousand (1,000) shares of common stock, par
value $1.00 per share and One Million Six Hundred Eighty-Five Thousand
Nine Hundred Ninety-Four (1,685,994) shares of preferred stock, par
value $1.00 per share.
2. Subscription for Stock.
----------------------
(a) Goldberg hereby subscribes for the Shares subject
to the terms and conditions of this Agreement. In exchange
for the issuance of the Shares by Casino, Goldberg agrees to
convey to Casino all of his right, title and interest in and
to 752,676 shares of common stock of Bally's Grand, Inc., a
Delaware corporation ("Nevada Shares").
NYFS04...:\30\20130\0001\2042\AGR1235W.550
<PAGE>
<PAGE>
(b) BEC hereby subscribes for the Common Shares
subject to the terms and conditions of this Agreement. In
exchange for the Common Shares BEC agrees to convey to
Casino all of its right, title and interest in and to all
the shares of Bally Intermediate Sub, Inc., a Delaware
corporation ("Sub Shares").
3. Warranties and Representations.
------------------------------
(a) Goldberg hereby warrants and represents that on
the date of this Agreement and at the time the Documents are
disbursed pursuant to subparagraph (c)(i) of Section 8:
(i) He is aware of the fact that no federal or
state agency has made any finding or determination as
to the fairness for public or private investment, nor
any recommendation or endorsement of the Shares for
investment.
(ii) He recognizes that Casino has only recently
been organized and has no meaningful financial or
operating history and, further, that the Shares, as an
investment, involve a high degree of risk.
(iii) He is aware of the fact that there is no
public market for the Shares and that it may not be
possible to readily liquidate his investment at any
time.
(iv) The Shares to be purchased by him will be
purchased for his own account entirely.
(b) BEC hereby warrants and represents that:
(i) It is aware of the fact that no federal or
state agency has made any finding or determination as
to the fairness for public or private investment, nor
any recommendation or endorsement of the Common Shares
for investment.
(ii) It recognizes that Casino has only recently
been organized and has no meaningful financial or
operating history and, further, that the Common Shares,
as an investment, involve a high degree of risk.
<PAGE>
<PAGE>
(iii) It is aware of the fact that there is no
public market for the Common Shares and that it may not
be possible to readily liquidate its investment at any
time.
(iv) The Common Shares to be purchased by it will
be purchased for its own account entirely.
4. Warranties and Representations of Casino. Casino
----------------------------------------
hereby represents and warrants that on the date of this Agreement and
at the time the Documents are disbursed pursuant to subparagraph
(c)(i) of Section 8, upon the issuance of the Shares and Common Shares
in accordance with the terms hereof, all such Shares and Common Shares
will be duly authorized, validly issued, fully paid and non
assessable, and free and clear of any and all liens and encumbrances,
and that Casino is acquiring the Nevada Shares for its own account,
for investment and without a view to the distribution thereof.
5. Effectuation of the Transaction. The transactions
-------------------------------
contemplated by this Agreement shall be effectuated by the following:
(a) Goldberg shall deliver to the Escrow Agent, as
promptly as practicable, a certificate or certificates
evidencing the Nevada Shares endorsed in blank.
(b) Casino shall deliver to the Escrow Agent, by
December 31, 1994, a guaranty of Bally's Park Place, Inc., a
Delaware corporation ("BPP Guaranty") substantially in the
form of Exhibit "A" to this Agreement.
(c) Casino shall deliver to the Escrow Agent, by
December 31, 1994, a stock certificate for the Shares to be
issued in exchange for the Nevada Shares.
(d) BEC shall deliver to the Escrow Agent, by December
31, 1994, a certificate evidencing the Sub Shares endorsed
in blank.
(e) Casino shall deliver to the Escrow Agent, by
December 31, 1994, a stock certificate for the Common Shares
to be issued in exchange for the Sub Shares.
(f) The Escrow Agent shall disburse the share
certificates and other documents referred to in this
<PAGE>
<PAGE>
Section 5 (collectively the "Documents") pursuant to Section
8.
6. Registration Rights.
-------------------
(a) Securities Subject to this Agreement. For
------------------------------------
purposes of this Agreement, "Registrable Securities" shall
mean the shares of Common Stock, par value $.66-2/3 of BEC
("BEC Common") acquired by Goldberg pursuant to exercise of
the exchange right provided by the Shares (including shares
received in respect of such shares pursuant to any stock
dividend or other recapitalization of BEC) until such time
as (i) a registration statement covering such Registrable
Securities has been declared effective and such Registrable
Securities have been disposed of pursuant to such effective
registration statement; (ii) such Registrable Securities are
transferred pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act of 1933, as amended
(the "Securities Act"); (iii) all Registrable Securities are
eligible to be sold under Rule 144 in any period of three
(3) months; or (iv) all Registrable Securities are
transferred to any person other than Goldberg, whichever is
earlier.
(b) Piggy-back Registration. If BEC proposes to file
-----------------------
a registration statement under the Securities Act with
respect to an offering by BEC for its own account (other
than a registration statement on Forms S-4 or S-8 or filed
in connection with an exchange offer or an offering of
securities solely to BEC's existing stockholders) of the BEC
Common, then BEC shall in each case give written notice of
such proposed filing to Goldberg at least ten (10) days
before the anticipated filing date, and such notice shall
offer Goldberg the opportunity to register such Registrable
Securities as Goldberg may request (a "Piggy-back
Registration"). On request of Goldberg (which request shall
specify the number of Registrable Securities intended to be
disposed of and the intended method of distribution),
received by BEC within five (5) days after the receipt by
Goldberg of BEC's notice of intention to file the proposed
registration statement, BEC shall include in such
registration and qualification for sale under the blue sky
or securities laws of the various states, the number of
shares of Registrable Securities held and requested to be
registered by Goldberg, which may be
<PAGE>
<PAGE>
all or a part of the Registrable Securities.
Notwithstanding the foregoing, if at any time prior to the
effective date of the registration statement filed in
connection with a Piggy-back Registration, BEC shall
determine for any reason not to register or to delay
registration of the securities proposed to be registered by
BEC under such registration statement, BEC may, at its
election, give written notice of such determination to
Goldberg and, thereupon, (i) in the case of a determination
not to register its securities, BEC shall be relieved of its
obligation to register any Registrable Securities in
connection with such registration, and (ii) in the case of a
determination to delay registering its securities, BEC shall
be permitted to delay registering any Registrable Securities
for the same period as the delay in registering such other
securities.
If BEC at any time proposed to register any of its
securities in a Piggy-back Registration and such securities
are to be distributed by or through one or more
underwriters, BEC shall use its best efforts to cause the
managing underwriter or underwriters of a proposed
underwritten offering to permit Goldberg to include such
Registrable Securities in such offering on the same terms
and conditions as any of the BEC Common Stock included
therein. In such case, Goldberg shall be a party to the
underwriting agreement between BEC and such underwriter or
underwriters, shall be obligated to sell those Registrable
Securities which Goldberg desires to sell in such Piggy-back
Registration through such underwriters on the basis provided
in such underwriting agreement and shall complete and
execute all questionnaires, powers of attorney, indemnities
and other documents reasonably required under the terms of
such underwriting agreement. If Goldberg disapproves of the
terms of an underwriting, he may elect to withdraw therefrom
and from such Piggy-back Registration by notice to BEC and
the managing underwriter. Notwithstanding the foregoing, if
the managing underwriter or underwriters of such offering
delivers a written opinion to Goldberg that the number of
shares which Goldberg or BEC intends to include in such
offering (including for the account of other stockholders)
is so large as to materially and adversely affect the
success of such offering (including by reducing the price
anticipated to be received in such offering), then the
amount of
<PAGE>
<PAGE>
securities to be offered for the account of Goldberg shall
be reduced to the extent necessary to reduce the number of
shares to be included in such offering to the number
recommended by such managing underwriter or underwriters.
(c) Demand Registration. At any time Goldberg may, on
-------------------
two (2) occasions, demand that BEC file a registration
statement (a "Demand Registration") under the Securities Act
with respect to an offering of not less than twenty-five
percent (25%) of the Registrable Securities held by Goldberg
by giving written notice to BEC of such demand (the "Demand
Notice") which shall indicate an intention on Goldberg's part
to exercise the exchange feature of the Shares. Within
sixty (60) days from the Demand Notice, BEC shall use its
best efforts to file a registration statement under the
Securities Act with respect to the Registrable Securities
included in the Demand Notice provided, however, that BEC
may postpone the filing of such registration statement for a
period of up to 60 days if BEC reasonably determines that
(i) such a filing would adversely affect any proposed
financing or acquisition by BEC or (ii) such filing would
otherwise represent undue hardship for BEC. Goldberg shall
be permitted to withdraw all or any part of the Registrable
Securities included in the Demand Notice from the Demand
Registration at any time prior to the effective date of such
Demand Registration. If at any time a registration
statement is filed pursuant to Demand Notice and
subsequently a sufficient number of Registrable Securities
are withdrawn from the Demand Registration so that the
registration statement does not cover at least twenty-five
percent (25%) of the Registrable Securities owned by
Goldberg, BEC may withdraw its registration statement. In
addition, Goldberg shall be deemed to have used one of the
rights to demand registration of Registrable Securities
under this Section 6.
BEC shall maintain the effectiveness of any
registration statement until consummation of distribution by
Goldberg of the Registrable Securities included in the
registration statement or as long as Goldberg reasonably
requests.
(d) Registration Procedures. Subject to BEC's right
-----------------------
to delay or withdraw a Registration set forth in
<PAGE>
<PAGE>
paragraphs (b) and (c) of this Section 6, whenever any
Registrable Securities are to be registered pursuant to this
Section 6, BEC will use its best efforts to effect the
registration and the sale of such Registrable Securities in
accordance (subject to paragraphs (b) and (c) of this
Section 6) with the intended method of disposition thereof
promptly, and in connection with any registrations, BEC will
promptly:
(i) Prepare and file with the Securities and
Exchange Commission (the "Commission") a registration
statement which includes the Registrable Securities and
use its best efforts to cause such registration
statement to become effective;
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the
registration statement as may be necessary to keep the
registration statement effective for the applicable
period referred to in Section 6 (but not prior to the
applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable);
cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all
securities covered by such registration statement
during the applicable period in accordance with the
intended methods of disposition thereof set forth in
such registration statement or supplement to the
prospectus;
(iii) Furnish to Goldberg and the underwriter or
underwriters, if any, without charge, such number of
conformed copies of the registration statement and any
post-effective amendment thereto and such number of
copies of the prospectus (including each preliminary
prospectus) and any amendments or supplements thereto,
and any documents incorporated by reference therein, as
Goldberg or such underwriter may reasonably request in
order to facilitate the disposition of the Registrable
Securities being sold by Goldberg;
<PAGE>
<PAGE>
(iv) Notify Goldberg at any time when a prospectus
relating to the Registrable Securities is required to
be delivered under the Securities Act, when BEC becomes
aware of the happening of any event as a result of
which the prospectus included in such registration
statement (as then in effect) contains any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements therein
in light of the circumstances under which they were
made, not misleading and, as promptly as practicable
thereafter, prepare and file with the Commission and
furnish a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not
contain any untrue statement of a material fact or omit
to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading;
(v) Make reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of
the registration statement at the earliest possible
moment;
(vi) As promptly as practicable after filing with
the Commission of any document which is incorporated by
reference into a registration statement, deliver a copy
of such document to Goldberg;
(vii) On or prior to the date on which the
registration statement is declared effective, use its
best efforts to register or qualify, and cooperate with
Goldberg, the underwriter or underwriters, if any, and
their counsel, in connection with the registration or
qualification of the Registrable Securities covered by
the registration statement for offer and sale under the
securities or blue sky laws of each state and other
jurisdiction of the United States as Goldberg or any
such underwriter requests in writing, to use its best
efforts to keep each such registration or qualification
effective, including through new filings, or amendments
or renewals, during the period such registration
statement is required to be kept effective and to do
any and
<PAGE>
<PAGE>
all other acts or things necessary or advisable to
enable the disposition in all such jurisdictions of the
Registrable Securities covered by the applicable
registration statement; provided that BEC will not be
required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to
take any action which would subject it to general
service of process or to taxation in any such
jurisdiction where it is not then so subject;
(viii) Cooperate with Goldberg and the managing
underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates (not
bearing any restrictive legends) representing
securities sold under the registration statement, and
enable such securities to be in such denominations and
registered in such names as the managing underwriter or
underwriters, if any, or Goldberg may request;
(ix) If applicable, enter into such customary
agreements (including an underwriting agreement in
customary form) and take such other actions as Goldberg
or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of such
Registrable Securities;
(x) At reasonable times and upon reasonable
notice, make available for inspection by Goldberg, any
underwriter participating in any disposition pursuant
to such registration statement, and any attorney,
accountant or other agent retained by Goldberg or any
such underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate
documents and properties of BEC (collectively, the
"Records"), as shall be reasonably necessary to enable
them to meet their due diligence responsibility, and
cause BEC's officers, directors and employees to supply
all information reasonably requested by any such
inspector in connection with such registration
statement; provided that BEC shall not be required to
provide any information under this paragraph if to do
so would cause BEC to forfeit an attorney-client
privilege that was applicable to such information;
provided, further that all such information reviewed or
obtained pursuant to this
<PAGE>
<PAGE>
paragraph shall be subject to a confidentiality
agreement between the parties prior to inspection;
(xi) Use reasonable efforts to obtain a cold
comfort letter from BEC's independent public
accountants in customary form and covering such matters
of the type customarily covered by cold comfort letters
as Goldberg or the underwriters, if any, shall
reasonably request.
Upon receipt of any notice from BEC of the
happening of any event of the kind described in
subsection (d) of this Section 6, Goldberg will
forthwith discontinue disposition of the Registrable
Securities until receipt of the copies of the
supplemented or amended prospectus contemplated by
subsection (d) of this Section 6 or until it is advised
in writing (the "Advice") by BEC that the use of the
prospectus may be resumed, and has received copies of
any additional or supplemental filings which are
incorporated by reference in the prospectus and, if so
directed by BEC, Goldberg will, or will request the
managing underwriter or underwriters, if any, to,
deliver to BEC (at BEC's expense) all copies, other
than permanent file copies then in Goldberg's
possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such
notice. In the event BEC shall give any such notice,
the time periods mentioned in subsection (b) of this
Section 6 shall be extended by the number of days
during the period from and including the date of the
giving of such notice to and including the date when
Goldberg shall have received the copies of the
supplemented or amended prospectus contemplated by
subsection (d) of this Section 6 or the Advice.
(e) Registration Expenses. All expenses incident to
---------------------
BEC's performance of or compliance with this Agreement,
including, without limitation, all Commission and securities
exchange or NASD registration and filing fees, fees and
expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities),
rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including, without
<PAGE>
<PAGE>
limitation, all salaries and expenses of BEC's officers and
employees performing legal or accounting duties), the fees
and expenses incurred in connection with the listing of the
securities to be registered, if any, on each securities
exchange on which similar securities issued by BEC are then
listed and fees and disbursement of counsel for BEC and its
independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters
required by or incident to such performance), securities act
liability insurance (if BEC elects to obtain such insurance)
and the fees and expenses of any special experts retained by
BEC in connection with such registration (but not including
any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities which shall be paid by
Goldberg) (all such expenses being herein called
"Registration Expenses") will be borne by BEC.
(f) Holdback Agreement. Goldberg, by acquisition of
------------------
the Registrable Securities, agrees, if so requested by the
managing underwriters, not to effect any public sale or
distribution (including a sale under Rule 144) of such
securities during the seven (7) days prior to the effective
date of any registration statement filed by BEC in
connection with an underwritten public offering of the BEC
Common Stock (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the managing
underwriter, in order to complete the sale and distribution
of the securities included in such registration).
(g) Indemnification; Contribution.
-----------------------------
(i) BEC agrees to indemnify and hold harmless
Goldberg, and any agent, against all losses, claims,
damages, liabilities and expenses (including reasonable
attorneys fees and costs of investigation) arising out
of or based upon any untrue or alleged untrue statement
of material fact contained in any registration
statement which includes Registrable Securities, any
amendment or supplement thereto, any prospectus or
preliminary prospectus or any omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, except insofar as the same
arise out of or are based upon any such untrue
<PAGE>
<PAGE>
statement or omission based upon information with
respect to Goldberg furnished in writing to BEC by or
on behalf of Goldberg expressly for use therein;
provided that, in the event that the prospectus shall
have been amended or supplemented and copies thereof,
as so amended or supplemented shall have been furnished
to Goldberg prior to the confirmation of any sales of
Registrable Securities, such indemnity with respect to
the prospectus shall not inure to the benefit of
Goldberg if the person asserting such loss, claim,
damage or liability did not, at or prior to the
confirmation of the sale of the Registrable Securities
to such person, receive a copy of the prospectus as so
amended or supplemented and the untrue statement or
omission of a material fact contained in the prospectus
was corrected in the prospectus as so amended or
supplemented. In connection with an underwritten
offering, BEC will indemnify the underwriters thereof,
their officers and directors and each person who
controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above
with respect to the indemnification of Goldberg except
with respect to information provided by the underwriter
specifically for inclusion therein.
(ii) Indemnification by Goldberg. In connection
---------------------------
with any registration statement in which Goldberg
participates, Goldberg will furnish to BEC in writing
such information with respect to Goldberg as BEC
reasonably requests for use in connection with any such
registration statement or prospectus and agrees to
indemnify, to the extent permitted by law, BEC, its
directors and officers and each person who controls BEC
(within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact
or any omission of a material fact required to be
stated in the registration statement or prospectus or
any amendment thereof or supplement thereto or
necessary to make the statements therein not
misleading, to the extent, but only to the extent, that
such untrue statement is contained in or such omission
relates to any information with respect to Goldberg so
furnished in writing by Goldberg specifically for
inclusion
<PAGE>
<PAGE>
in any prospectus or registration statement. In no
event shall the liability of Goldberg hereunder be
greater in amount than the dollar amount of the
proceeds received by Goldberg upon the sale of the
Registrable Securities giving rise to such
indemnification obligation.
(iii) Conduct of Indemnification Proceedings. Any
--------------------------------------
person entitled to indemnification hereunder agrees to
give prompt written notice to the indemnifying party
after the receipt by such person of any written notice
of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for
which such person will claim indemnification or
contribution pursuant to this Agreement and, unless in
the reasonable judgment of counsel of such indemnified
party a conflict of interest may exist between such
indemnified party and the indemnifying party with
respect to such claim, permit the indemnifying party to
assume the defense of such claim. Whether or not such
defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability
for any settlement made without its consent (but such
consent will not be unreasonably withheld). No
indemnifying party will consent to entry of any
judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of
a release from all liability in respect of such claim
or litigation. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and
expenses of more than one counsel with respect to such
claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist
between such indemnified party and any other
indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel
or counsels as are required due to such conflict of
interest.
<PAGE>
<PAGE>
(iv) Contribution. If the indemnification
------------
provided for in this Section 6 from the indemnifying
party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties and the
relative benefits received by the indemnifying party
and the indemnified parties in connection with the
actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether
any action in question, including any untrue or alleged
untrue statement of a material fact, has been made by,
or relates to information supplied by, such
indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 6, any
reasonable legal or other fees or expenses reasonably
incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section
6 were determined by pro rata allocation or by any
other method of allocation which does not take account
of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the
provisions of this Section 6, Goldberg shall not be
required to contribute any amount in excess of the
amount by which the total price at which the
Registrable Securities of Goldberg were offered to the
public exceeds the amount of any damages which Goldberg
has otherwise been required to pay by
<PAGE>
<PAGE>
reason of such untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
7. General.
-------
(a) Entire Agreement. This Agreement and the
----------------
documents referred to herein contain the entire
understanding of the parties hereto with respect to the
subject matter hereof and there are no restrictions,
representations, warranties, covenants or undertakings of
the parties hereto except those expressly set forth herein
or in a document referred to herein.
(b) Survival. The representations, warranties,
--------
covenants and agreements of the parties contained herein
shall survive the execution and delivery of this Agreement
and the exchange of the Nevada Shares and the Sub Shares,
and the issuance of the Shares and the Common Shares
contemplated hereby.
(c) Further Assurances, Specific Performance. The
----------------------------------------
parties hereto each agree to execute and deliver such other
instruments, documents or agreements as may be reasonably
necessary or desirable for the implementation of this
Agreement and the consummation of the transactions
contemplated hereby. In the event any party fails to
deliver to the Escrow Agent any of the documents required by
Section 5 by the time specified in Section 5, any other
party shall be entitled, in addition to all other remedies,
to a decree for specific performance of the provisions of
this Agreement that relate to delivery of the items set
forth in Section 5.
(d) Amendment; Waiver. This Agreement may be amended
-----------------
and any provisions hereof may be waived only by a written
instrument signed by the party against whom enforcement
thereof is sought.
(e) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered
personally or sent by telex or telecopier, registered or
certified mail (return receipt
<PAGE>
<PAGE>
requested), postage prepaid or courier to the parties at the
following addresses (or at such other address for any party
as shall be specified by like notice, provided that notices
of a change of address shall be effective only upon receipt
thereof). Notice sent by mail shall be effective five days
after mailing; notices sent by telex shall be effective when
answered back; notices sent by telecopier shall be effective
when receipt is acknowledged; and notices sent by courier
guaranteeing next day delivery shall be effective on the
next business day after timely delivery to the courier.
(i) if to Goldberg, at the following address:
Bally Entertainment Corporation
2 Executive Drive
Somerset, NJ 09973
Telephone: 908/469-4444
Facsimile: 908/469-3876
(ii) if to BEC or Casino, at the following address:
Bally Entertainment Corporation
8700 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Secretary
Telephone: 312/399-1300
Facsimile: 312/399-1231
or
(iii) if to Escrow Agent, at the following address:
Orloff, Lowenbach, Stifelman & Siegel, P.A.
101 Eisenhower Parkway
Roseland, NJ 07068
Attention: F. Stifelman
Telephone: 201/622-6200
Facsimile: 201/622-3073
(f) Section Headings. The section headings contained
----------------
in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
<PAGE>
<PAGE>
(g) Severability. If at any time subsequent to the
------------
date of this Agreement, any provision of this Agreement
shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of
no force or effect but the illegality or unenforceability of
such provision shall have no effect upon or impair the
enforceability of any other provision.
(h) BEC Common. The parties hereto acknowledge that
----------
BEC is not obligated to contribute BEC Common to Casino in
connection with the issuance of the Shares or the subsequent
exercise of the exchange feature of the Shares. Nothing in
this subsection (h) is intended to or shall serve to relieve
Casino of the obligation to deliver BEC Common upon the
exercise of the exchange feature of the Shares. In the
event the exchange feature of the Shares is exercised, BEC
agrees to sell to Casino such number of shares of BEC Common
as Casino requires to satisfy its obligation in connection
with the exercise of the exchange feature of the Shares.
The price per share for BEC Common to be paid by Casino
shall be the average closing price for BEC Common as
reported on the New York Stock Exchange (or such other
principal market for BEC Common if not listed on the New
York Stock Exchange) for the five (5) trading days ending
five (5) days prior to the date Casino is required to
deliver the BEC Common after exercise of the exchange right
of the Shares. Casino may purchase such shares of BEC
Common for cash or a combination of cash and notes. If
Casino chooses to pay for such shares of BEC Common for a
combination of cash and notes, the cash portion must be at
least an amount calculated by multiplying the number of
shares of BEC Common to be purchased by the par value of the
BEC Common. The terms of any note to be issued by Casino to
BEC shall be at least as favorable as BEC would have
received at that time from an unaffiliated third party. As
a condition to the issuance of the BEC Common, Casino shall
deliver to BEC, at the time the note is delivered, a written
opinion of a nationally recognized expert (reasonably
satisfactory to BEC) with experience in appraising the terms
and conditions of such note that the terms of such note are
fair to BEC from a financial point of view. Casino agrees
to amend the terms of such note to the extent required to
obtain such an opinion.
<PAGE>
<PAGE>
(i) Assignment. In the event Goldberg transfers any
----------
Shares or BEC Common he receives by exercising the exchange
feature of the Shares to any of (i) his spouse or issue,
(ii) the trustees of any trust made primarily for the
benefit of Goldberg, his spouse or issue, (iii) a
corporation in which Goldberg has a controlling interest or
(iv) the beneficiaries of any trust described in clause (ii)
of this sentence (collectively, the "Permitted Assigns"), by
accepting transfer of the Shares or BEC Common, the
Permitted Assigns shall be deemed to be bound by and to
receive the benefits of the provisions of this Agreement.
Notwithstanding the foregoing, there shall not be more than
10 Permitted Assigns. In addition, for purposes of Section
6 of this Agreement, those portions of Section 7 of this
Agreement which relate to Section 6 and Section 8 the term
"Goldberg" shall be deemed to include any Permitted Assigns.
(j) Litigation Costs. In the event of litigation
----------------
among the parties or between any of them, relating to the
Subscription Agreement or the transactions contemplated by
the Subscription Agreement, the prevailing party in such
litigation shall be entitled to recover from the other party
or parties, as the case may be, the costs and expenses
incurred by the prevailing party in such litigation,
including reasonable attorneys' fees.
(k) Counterparts. This Agreement may be executed in
------------
one or more counterparts, each of which shall be deemed an
original but all of which when taken together shall
constitute one and the same document.
8. Escrow.
------
(a) Appointment. Orloff, Lowenbach, Stifelman &
-----------
Siegel, P.A. is hereby appointed Escrow Agent to hold and
dispose of the Documents in accordance with the terms of
this Agreement.
(b) Duties. The Escrow Agent shall hold and safeguard
------
the Documents until the earlier of (i) February 15, 1995, or
(ii) such time as it receives an officer's certificate of
BEC ("Officer's Certificate") stating that (y) BEC has
received a written opinion from a nationally recognized
investment banking firm to the effect that the exchange of
the Nevada Shares for
<PAGE>
<PAGE>
the Shares, with the terms presently included are fair to
BEC from a financial point, and (z) that BEC has received
evidence of approval of the New Jersey Casino Control
Commission to the transactions contemplated by this
Agreement.
(c) Distribution of Documents.
-------------------------
(i) Upon receipt by the Escrow Agent of the
Officer's Certificate, the Escrow Agent shall disburse
to Casino the certificate or certificates evidencing
the Nevada Shares, disburse to Goldberg the BPP
Guaranty and the certificate for the Shares, disburse
to Casino a certificate evidencing the Sub Shares and
disburse to BEC a certificate for the Common Shares.
(ii) In the event that the Escrow Agent does not
receive the Officer's Certificate by February 15, 1995,
the Escrow Agent shall return to Goldberg the
certificate or certificates evidencing the Nevada
Shares, return to Casino the BPP Guaranty and the
certificate for the Shares, return to BEC the
certificate evidencing the Sub Shares and return to
Casino the certificate for the Common Shares.
(d) Other. Escrow Agent shall hold and safeguard
-----
the Documents and shall treat such Documents as a trust in
accordance with the terms hereof and not as property of the
Escrow Agent. Each party depositing any Document shall
retain the voting rights and rights to any dividend or
distribution with respect to the capital stock, if any,
represented by such Document until such time as the
Documents are disbursed by the Escrow Agent pursuant to
subparagraph (c)(i) of this Section 8. It is understood and
agreed that the duties of the Escrow Agent are only such as
are herein specifically provided, being purely ministerial
in nature, and it shall have no responsibility for the
genuineness or validity of any document or other items
deposited with it. The Escrow Agent may act upon any
notice, certificate, instrument or other document believed
to be genuine and to have been made, sent, signed or
prescribed by the proper party or parties, and shall not be
liable for any action taken or omitted by it in connection
with the performance by it of its duties pursuant to this
Agreement, except for any
<PAGE>
<PAGE>
willful misconduct, gross negligence or bad faith of it, its
employees or agents and it shall be under no obligation to
institute or defend any action, suit or legal proceeding in
connection herewith or take any other action likely to
involve it in expenses unless first indemnified to its
satisfaction. The Escrow Agent shall not be liable for the
sufficiency or correctness as to form, manner of execution,
or validity of any instrument deposited, or as to identity,
authority or rights of any person executing the same.
Liability as the Escrow Agent shall be confined to the
things specifically provided for in this Agreement. Should
the Escrow Agent before or after the close of escrow receive
or become aware of any conflicting demands or claims with
respect to the Documents, the Escrow Agent shall have the
right to discontinue any or all further acts on its part
until such conflict is resolved to the parties'
satisfaction, and the Escrow Agent shall have the further
right to commence or defend any action or proceedings for
the determination of such conflict. The parties other than
the Escrow Agent hereto jointly and severally agree to pay
all costs, damages, judgments and expenses including
reasonable attorneys' fees, suffered or incurred by the
Escrow Agent in connection with or arising out of this
escrow, including, but not limited to the generality of the
foregoing, a suit in interpleader brought by the Escrow
Agent provided, however, that the Escrow Agent shall not be
entitled to any indemnification for any willful misconduct,
gross negligence or bad faith on the part of it, its
employees or agents. The Escrow Agent shall be reimbursed
by BEC for any out-of-pocket expenses incurred in connection
with its services hereunder. Serving as the Escrow Agent
hereunder shall not in any way prevent the Escrow Agent from
continuing to represent Goldberg as legal counsel.
9. Indemnification. BEC and Casino jointly and severally
---------------
agree to indemnify and hold harmless Goldberg from and on account of
any and all federal, state, and local Income Taxes (as defined in the
next sentence) payable by Goldberg solely as the result of the
transfer by Goldberg of the Nevada Shares into escrow pursuant to
Section 8 hereof and/or the return of the Nevada Shares to Goldberg by
the Escrow Agent pursuant to subparagraph (c)(ii) of Section 8 hereof.
"Income Taxes" as used in the preceding sentence shall mean all taxes,
interest, penalties, and additions to tax resulting from the payment
to or
<PAGE>
<PAGE>
for the benefit of Goldberg of any of the foregoing, whether
applicable to Goldberg's 1994 or 1995 income, or both.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BALLY'S CASINO, INC.
By: /s/ Lee S. Hillman
----------------------------
BALLY ENTERTAINMENT CORPORATION
By: /s/ Lee S. Hillman
----------------------------
/s/ Arthur M. Goldberg
----------------------------
Arthur M. Goldberg
ORLOFF, LOWENBACH, STIFELMAN
& SIEGAL, P.A.
/s/ Ralph M. Lowenbach
-------------------------------
<PAGE>
EXHIBIT 99.B (CE)
-----------------
CERTIFICATE OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF THE SERIES A
CUMULATIVE EXCHANGEABLE PREFERRED STOCK, PAR VALUE $1.00 PER SHARE, OF
BALLY'S CASINO, INC.
________________________
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
________________________
We, the undersigned, Lee S. Hillman and Carol S. DePaul, the
Executive Vice President and the Secretary, respectively, of Bally's
Casino, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in
accordance with the provisions of Section 151 thereof, DO HEREBY
CERTIFY that the Board of Directors of the Corporation duly adopted
the following resolution on August 10, 1994:
RESOLVED, that pursuant to the authority expressly granted
to and vested in the Board of Directors of the Corporation by the
provisions of the Restated Certificate of Incorporation of the
Corporation the Board of Directors has created a series of Preferred
Stock, par value $1.00 per share, of the Corporation, to consist of
1,685,994 shares of such Preferred Stock, and hereby fixes the
designations, preferences and relative, participating, optional or
other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof (in addition to
the designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, set forth in the Restated Certificate of
Incorporation of the Corporation which are applicable to Preferred
Stock of all series) as follows:
I. DESIGNATION
The designation of the series of Preferred Stock created by
this resolution shall be "Series A Cumulative Exchangeable Preferred
Stock" (the "Series A Preferred Shares") and the authorized number of
shares constituting such series shall be 1,685,994. The par value of
the Series A Preferred Shares shall be $1.00 per share.
NYFS04...:\30\20130\0001\2042\EXH1245F.070
<PAGE>
<PAGE>
A. Voting Rights. Each holder of Series A Preferred Shares
-------------
shall be entitled to vote for the election or removal of the directors
of the Corporation and on all other matters which shareholders are
entitled to vote under the General Corporation Laws of the State of
Delaware and shall have one vote for each share of Series A Preferred
Shares held of record. Holders of the Series A Preferred Shares shall
not have any right to vote their shares as a separate class, except as
may be required by the General Corporation Laws of the State of
Delaware. Each recordholder of Series A Preferred Shares shall be
entitled to notice of all meetings or actions of shareholders.
B. Dividend Rights.
---------------
1. The holders of shares of the Series A Preferred Stock
will be entitled to receive, when, as and if declared by the
Corporation's Board of Directors out of funds of the Corporation
legally available therefor, cumulative cash dividends on the shares of
the Series A Preferred Shares at the rate of $.339 per annum per
share, payable semi-annually on January 31, and July 31 in each year,
commencing July 31, 1995. Such dividends shall be cumulative from the
date of original issue of such shares. Each such dividend shall be
paid to the holders of record of shares of the Series A Preferred
Shares as they appear on the stock register of the Corporation on such
record date, not more than 30 days nor less than 10 days preceding the
dividend payment date thereof, as shall be fixed by the Board of
Directors of the Corporation or a duly authorized committee thereof.
2. Dividends payable on the Series A Preferred Stock for
any period less than a full quarterly dividend period shall be
computed on the basis of a 360-day year of twelve 30-day months and
the actual number of days elapsed in the period for which payable.
C. Liquidation Rights.
------------------
1. Upon the dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the
holders of outstanding Series A Preferred Shares shall be entitled to
receive in respect of each share from the Corporation's assets
available for distribution to stockholders cash in the amount of the
Liquidation Preference (as hereinafter defined) per share, before any
payment or distribution shall be made to the holders of shares of the
Corporation's common stock, par value $1.00 per share ("Common
Shares"), or shares of any other class of capital stock of the
Corporation. If, upon any liquidation, dissolution or winding up of
the affairs of the
<PAGE>
<PAGE>
Corporation, the Corporation has insufficient funds to pay the amounts
payable under this paragraph 1 to the holders of all the outstanding
Series A Preferred Shares, the holders of such Series A Preferred
Shares shall share ratably in any distribution of assets in proportion
to the full amounts to which they would otherwise be respectively
entitled.
2. None of the sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Corporation, nor the
consolidation or merger of the Corporation with or into any other
corporation or corporations, nor the consolidation or merger of any
other corporation or corporations with or into the Corporation, nor
any dissolution, liquidation, winding up or reorganization of the
Corporation immediately followed by reincorporation of another
corporation succeeding to the business and obligations of the
Corporation, shall be deemed a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning of this Section
C.
3. After the payment in cash to the holders of Series A
Preferred Shares of the full preferential amount fixed in accordance
with the provisions of paragraph 1 with respect to the outstanding
Series A Preferred Shares, the holders of outstanding Series A
Preferred Shares as such will have no right or claim to any of the
remaining assets of the Corporation.
4. The "Liquidation Preference" per Series A Preferred
Share shall be Six Dollars and Two and Seven Tenths Cents ($6.027) per
share plus an amount in cash equal to all accrued but unpaid dividends
thereon on the date of dissolution, liquidation or winding up.
D. Exchange Rights.
---------------
1. Exchange. The holder of each outstanding Series A
--------
Preferred Share may, at any time on or before December 31, 2001 and
subject to the terms and conditions hereinafter set forth, exchange
such share for shares of Common Stock, par value $.66-2/3 per share,
of Bally Entertainment Corporation (hereinafter called the "Bally
Common Stock") at the Exchange Ratio (as hereinafter defined). To the
extent at the time an exchange is requested, in the sole judgment of
the Corporation, the issuance of Bally Common Stock to be transferred
on the exchange of Series A Preferred Shares requires shareholder or
other approvals of the Corporation or Bally Entertainment Corporation
or its successors or assigns (hereinafter called "BEC") not previously
obtained in order to comply with rules and
<PAGE>
<PAGE>
regulations established by the New York Stock Exchange, the holder
shall not be permitted to exchange Series A Preferred Shares for Bally
Common Stock; provided that, if part but not all of the Series A
Preferred Shares may be exchanged without obtaining such approval,
then such portion of Series A Preferred Shares not requiring approval
for exchange may be exchanged and provided further that the
Corporation shall redeem the shares of Series A Preferred Stock of any
holder that seeks to exchange shares of Series A Preferred Stock but
is not permitted to exchange such shares, in whole or in part, due to
any of the foregoing for an amount equal to the "Underlying Value."
The term "Underlying Value" for each share of Series A Preferred
Shares shall mean the aggregate value of the shares of Bally Common
Stock that a share of Series A Preferred Shares is exchangeable into,
and any other securities, rights, evidence of indebtedness or assets
that holders of Series A Preferred Shares would be entitled to receive
per share pursuant to paragraph 5(d) of this Section D which value
shall be the sum of (i) the product of the aggregate shares of Bally
Common Stock that a share of the Series A Preferred Shares is
exchangeable into and the average closing price per share of Bally
Common Stock for the five trading days following the date that the
Corporation notifies a holder of Series A Preferred Shares in writing
that has complied or substantially complied with paragraph 3 of
Section D that such exchange will not be permitted, in whole or in
part; and (ii) the fair market value of any such rights, evidence of
indebtedness or assets as determined in good faith by the Board of
Directors of the Corporation and evidenced by a resolution thereof.
2. Exchange Price. Each Series A Preferred Share shall be
--------------
exchangeable at an office or agency referred to below into a number of
shares of Bally Common Stock (calculated as to each conversion to the
nearest whole share) as is determined by dividing Six dollars and two
and seven/tenths cents ($6.027) by the Exchange Price on the Exchange
Date (defined below (the "Exchange Ratio")). The price at which
shares of Bally Common Stock shall initially be transferred upon
exchange shall be Six Dollars and Seventy-Five Cents ($6.75) per
share, which price may be adjusted from time to time as hereinafter
provided (the "Exchange Price").
3. Method of Exchange. In order to exercise such exchange
------------------
right, the holder of any Series A Preferred Shares to be exchanged
shall present and surrender the certificate(s) representing such
Series A Preferred Shares during usual business hours at any office or
agency of the Corporation maintained for the transfer of Series A
Preferred Shares, and shall deliver a written notice of its election
to exchange the Series A Preferred
<PAGE>
<PAGE>
Shares represented by such certificate(s), or any portion thereof,
specified in such notice. Such notice shall also state the name or
names (with addresses) in which the certificate or certificates for
Bally Common Stock transferrable on such exchange shall be
transferred. If so required by the Corporation, any certificate for
Series A Preferred Shares surrendered for exchange shall be
accompanied by an instrument of transfer, in form satisfactory to the
Corporation, duly executed by the holder of such Series A Preferred
Shares or such holder's duly authorized representative. Each exchange
of Series A Preferred Shares shall be deemed to have been effected on
the date (the "Exchange Date") on which the certificate or
certificates representing such Series A Preferred Shares shall have
been surrendered and any required notice and instruments of transfer
received as aforesaid. Subject to the provisions of paragraph 5(f) of
this Section D, the person or persons in whose name or names any
certificate or certificates for Bally Common Stock shall be
transferrable upon such exchange shall be deemed (as between such
person and the Corporation) to have become the holder or holders of
record of such Bally Common Stock immediately prior to the close of
business on the Exchange Date. Subject to the provisions of paragraph
5(f) of this Section D, as promptly as practicable after the
presentation and surrender for exchange, as herein provided, of any
certificate for Series A Preferred Shares, the Corporation shall
transfer and deliver at such office or agency, to or upon the written
order of the holder thereof, a certificate or certificates for the
number of shares of Bally Common Stock transferrable upon such
exchange. In the event that any certificate for Series A Preferred
Shares shall be surrendered for exchange of less than all of the
Series A Preferred Shares represented thereby, the Corporation shall
deliver at such office or agency, to or upon the written order of the
holder thereof, a certificate or certificates for the number of Series
A Preferred Shares represented by such surrendered certificate which
are not exchanged. The issuance of certificates for Bally Common
Stock transferrable upon the exchange of Series A Preferred Shares,
and the issuance of certificates representing Series A Preferred
Shares which are not exchanged as described above, shall be at the
Corporation's expense and without charge to the exchanging holder for
any tax imposed on the Corporation in respect of the issue thereof.
The Corporation shall not, however, be required to pay any tax which
may be payable with respect to any transfer involved in the issue and
delivery of any certificate in a name other than that of the holder of
the Series A Preferred Shares, and the Corporation shall not be
required to issue or deliver any such certificate unless and until the
person requesting the transfer thereof shall have paid to the
Corporation the amount of such tax
<PAGE>
<PAGE>
or shall established to the satisfaction of the Corporation that such
tax has been paid.
4. Fractional Shares. If more than one Series A Preferred
-----------------
Share shall be surrendered for exchange at one time by the same
holder, the number of full shares of Bally Common Stock transferrable
upon exchange thereof shall be computed on the basis of the aggregate
number of Series A Preferred Shares so surrendered. Any fractional
interest in a share of Bally Common Stock deliverable upon the
exchange of any Series A Preferred Shares will be rounded to the
nearest whole share, and the certificate for Bally Common Stock
delivered by the Corporation pursuant to paragraph 3 shall be only in
whole shares of Bally Common Stock.
5. Adjustment of Exchange Price. The Exchange Price for
----------------------------
the Series A Preferred Shares shall be subject to adjustment from time
to time as follows:
a. Stock Dividends; Stock Splits, etc. If the number
-----------------------------------
of shares of Bally Common Stock outstanding is increased by
a stock dividend payable in shares of Bally Common Stock or
by a subdivision or split-up of Bally Common Stock, then
immediately after the Corporation receives notice of the
record date fixed for the determination of holders of Bally
Common Stock entitled to receive such stock dividend or the
effective date of such subdivision or such split-up, as the
case may be, the Exchange Price shall be appropriately
adjusted so that the holder of any Series A Preferred Share
thereafter exchanged shall be entitled to receive the number
of shares of Bally Common Stock which such holder would have
owned immediately following such action had such Series A
Preferred Share been exchanged into Bally Common Stock
immediately prior thereto, assuming no limitations due to
the provisions of paragraph 1 of Section D.
b. Combination of Shares. If the number of shares of
---------------------
Bally Common Stock outstanding is decreased by a combination
of the outstanding shares of Bally Common Stock, immediately
after the effective date of such combination, the Exchange
Price shall be appropriately adjusted so that the holder of
any Series A Preferred Shares thereafter exchanged shall be
entitled to receive the number of shares of Bally Common
Stock which such holder would have owned immediately
following such action had such Series A
<PAGE>
<PAGE>
Preferred Shares been exchanged immediately prior thereto,
assuming no limitations due to the provisions of paragraph 1
of Section D.
c. Reorganizations, Etc. In the case of any capital
---------------------
reorganization of BEC, any reclassification of shares of
Bally Common Stock, the consolidation of BEC with or the
merger of BEC with or into any other entity (other than a
reorganization or merger solely for the purpose of a change
in the state of incorporation of BEC) or the sale, lease or
other transfer of all or substantially all of the assets of
BEC to any other person or entity, each Series A Preferred
Share shall after such capital reorganization,
reclassification, consolidation, merger, sale, lease or
other transfer be convertible into the number of shares of
capital stock or other securities or property to which the
shares of Bally Common Stock transferrable (at the time of
such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer) upon
exchange of such Series A Preferred Shares would have been
entitled upon such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer; and in
any such case, if necessary, the provisions set forth herein
with respect to the rights and interests thereafter of the
holders of the Series A Preferred Shares shall be
appropriately adjusted so as to be applicable, as nearly as
may reasonably be possible, to any shares of capital stock
or other securities or property thereafter deliverable on
the exchange of the Series A Preferred Shares, assuming no
limitations due to the provisions of paragraph 1 of Section
D.
d. Evidences of Indebtedness or Assets. In the event
-----------------------------------
that after December 31, 1994 BEC shall declare a
distribution payable in securities or rights of any other
individual, corporation, partnership, association, trust or
other entity or organization, including any government or
political subdivision or any agency or instrumentality
thereof ("Person"), or evidences of indebtedness issued by
BEC or other Persons or assets (excluding cash dividends or
dividends payable solely in shares of BEC Common Stock)
then, in each such case, each holder of Series A Preferred
Shares shall receive such distribution when shares of the
Series A Preferred Shares are exchanged for shares of Bally
Common Stock, assuming no
<PAGE>
<PAGE>
limitations due to the provisions of paragraph 1 of Section
D.
e. Rounding of Calculations; Minimum Adjustment. All
--------------------------------------------
calculations under this paragraph 5 shall be made to the
nearest cent or to the nearest one-hundredth (1/100th) of a
share, as the case may be. Any provision of this Section D
to the contrary notwithstanding, no adjustment in the
Exchange Price shall be made if the amount of such
adjustment would be less than one cent ($0.01), but any such
amount shall be carried forward and an adjustment with
respect thereto shall be made at the time of, and together
with, any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward,
shall aggregate one cent ($0.01) or more.
f. Timing of Issuance of Additional Bally Common
---------------------------------------------
Stock Upon Certain Adjustments. If (i) the provisions of
------------------------------
this paragraph 5 shall require that an adjustment shall
become effective immediately after a record date for an
event, and (ii) any Series A Preferred Shares are converted
after such record date and before the occurrence of such
event, then the Corporation may defer, until the occurrence
of such event, issuing to the holder of Series A Preferred
Shares so converted the Bally Common Stock issuable upon
such exchange by reason of the adjustment. The Corporation
upon request shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's right
to receive such additional shares upon the occurrence of the
event requiring such adjustment.
g. Applicable Adjustment. In any case in which two
---------------------
or more separate provisions of this paragraph 5 shall require
an adjustment to the Exchange Price for the Series A
Preferred Shares due to the same circumstances or set of
circumstances, the applicable adjustment shall be the
largest adjustment lowering the Exchange Price resulting
from the application of any appropriate subparagraph of this
paragraph 5 to such event.
6. Statement Regarding Adjustments. Whenever the Exchange
-------------------------------
Price is adjusted as herein provided:
a. the Corporation shall compute the adjusted
Exchange Price in accordance with this Section D and
<PAGE>
<PAGE>
shall prepare a certificate signed by an officer of the
Corporation setting forth the adjusted Exchange Price and
the facts requiring such adjustments, and such certificate
shall forthwith be filed at the office of the transfer agent
or agents, if any, for the Series A Preferred Shares and at
the principal office of the Corporation; and
b. a notice stating that the Exchange Price has been
adjusted and setting forth the adjusted Exchange Price and
the facts requiring such adjustment shall, as soon as
practicable, be mailed to the holders of record of the
outstanding Series A Preferred Shares. Where appropriate,
such notice may be given in advance and may be included as
part of a notice required to be mailed under the provisions
of paragraph 8 of this Section D.
7. Cancellation. All Series A Preferred Shares which
------------
shall have been surrendered for exchange as herein provided in this
Section D shall no longer be deemed to be outstanding and all rights
with respect to such Series A Preferred Shares, including the rights,
if any, to receive notices and to vote, shall forthwith cease and
terminate, except only the right of the holders thereof to receive
Bally Common Stock or other assets or property in exchange therefor.
Any Series A Preferred Shares surrendered for exchange shall be
cancelled and shall not be reissued by the Corporation.
8. Notice to Holders. In the event that:
-----------------
a. the Corporation shall, or receives notice that BEC
intends to, take action leading to a voluntary or
involuntary dissolution, liquidation or winding up of the
affairs of the Corporation or BEC, as the case may be;
b. the Corporation receives notice that BEC intends
to take action to offer for subscription pro rata to the
holders of any class of its capital stock securities of any
kind; or
c. the Corporation shall, or receives notice that BEC
intends to, take action to accomplish any capital
reorganization, or reclassification of the Bally Common
Stock (other than a subdivision, split-up or combination of
the Bally Common Stock), or consolidation or merger to which
the Corporation or BEC
<PAGE>
<PAGE>
is a party and for which approval of any shareholders of the
Corporation or BEC is required, or the sale or transfer of
all or substantially all of the assets of the Corporation or
BEC;
then the Corporation shall promptly (but in the case of any such
reorganization, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up of the Corporation,
at least thirty (30) days prior to the date or expected date on which
the same shall take place) cause written notice thereof to be mailed
to each holder of Series A Preferred Shares at such holder's address
as shown on the books of the Corporation. The notice to be given in
accordance with this paragraph 8 shall also specify (A) the date or
expected date on which the holders of Bally Common Stock shall be
entitled to such offering of subscription rights, or (B) the date or
expected date on which the holders of Bally Common Stock or Series A
Preferred Shares shall be entitled to exchange their shares for
securities or other property deliverable upon any such reorganization,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, as the case may be. In the event that any
holder of Series A Preferred Shares sends a written notice ("Holder's
Notice") to the Corporation that such holder believes any proposed
reorganization, reclassification, consolidation, merger, sale or
transfer will, in such holder's reasonable opinion, impair the
Corporation's ability to redeem such holder's Series A Preferred
Shares, then the Corporation shall redeem such shares in accordance
with paragraph 2 of Section E prior to, and as a condition of the
consummation of any such reorganization, reclassification,
consolidation, merger, sale or transfer. The date of such redemption
is hereinafter referred to as a "Special Redemption Date."
9. Reclassification of Bally Common Stock. For the
--------------------------------------
purposes of this Section D, the term "Bally Common Stock" shall mean
(a) the class of stock designated as the Common Stock of BEC in BEC's
Restated Certificate of Incorporation, or (b) any other class of stock
resulting from successive changes or reclassification of such Bally
Common Stock consisting solely of changes in par value or from no par
value to par value, or from par value to no par value. If at any time
as a result of an adjustment made pursuant to the provisions of
paragraph 5(c) of this Section D, the holder of any Series A Preferred
Shares thereafter surrendered for exchange shall become entitled to
receive any shares other than Bally Common Stock then the number of
such other shares so receivable upon exchange of any Series A
Preferred Share shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to
<PAGE>
<PAGE>
the provisions with respect to the Bally Common Stock contained in
paragraph 5(c) of this Section D, and the other provisions of this
Section D with respect to the Bally Common Stock shall apply on like
terms to any such other shares.
10. No Liens. All Bally Common Stock that may be
--------
transferred upon exchange of the Series A Preferred Shares will, upon
transfer by the Corporation, be free from all taxes, liens and charges
with respect to the issuance thereof, and the Corporation shall take
no action which will cause a contrary result.
E. Redemption.
----------
1. Optional Redemption.
-------------------
a. The Series A Preferred Shares will be redeemable
at any time on and after June 30, 1997 at the option of the
Corporation by resolution of its Board of Directors, in
whole and not in part (except as set forth in paragraph
(b)), at Six Dollars and Two and Seventh Tenths Cents
($6.027) per share, plus in each case, all dividends accrued
and unpaid on the Series A Preferred Shares up to the date
fixed for redemption (the "Redemption Price"), upon giving
notice as provided.
b. Notwithstanding anything to the contrary, the
Corporation shall have the option at any time, by resolution
of its Board of Directors, to redeem the Series A Preferred
Shares held by any holder, to the extent required by any
gaming laws or authorities of any jurisdiction in which the
Corporation or any of its subsidiaries or affiliates is
licensed, registered, approved or found suitable, at the
maximum price allowed by such gaming laws or authorities.
2. Mandatory Redemption. Upon the earliest to occur of
--------------------
(i) December 31, 2001, or (ii) at any time after June 30, 1997, 35
days after receiving notice from the holders of all of the Series A
Preferred Shares, (iii) at any time after Arthur Goldberg is no longer
chairman of the Board of Directors of Bally Entertainment Corporation,
thirty-five (35) days after receiving notice from the holders of all
of the Series A Preferred Shares or (iv) receipt of a Holder's Notice,
the Corporation shall redeem all outstanding Series A Preferred Shares
by paying in cash therefor an amount per share equal to the Redemption
Price if due to clause (i), (ii) or (iii) of this sentence or the
<PAGE>
<PAGE>
greater of the Redemption Price or the "Special Redemption Price" (as
hereinafter defined) if due to clause (iv) of this sentence. The term
"Special Redemption Price" for each share of Series A Preferred Shares
shall mean the aggregate value of the shares of Bally Common Stock
that a share of Series A Preferred Shares is exchangeable into, and
any other securities, rights, evidence of indebtedness or assets that
holders of Series A Preferred Shares would be entitled to receive per
share pursuant to Section 5(d) of Section D which value shall be the
sum of (i) the product of the aggregate shares of Bally Common Stock
that a share of the Series A Preferred Shares is exchangeable into and
the average closing price per share of Bally Common Stock for the five
days following receipt of a Holder's Notice and (ii) the fair market
value of any such rights, evidence of indebtedness or assets as
determined in good faith by the Board of Directors of the Corporation
and evidenced by a resolution thereof. December 31, 2001, and the
date 35 days after receiving notice from all the holders of the Series
A Preferred Shares are hereinafter referred to as the "Mandatory
Redemption Date."
3. At least ten (10) but not more than sixty (60) days
prior to the date fixed for redemption, written notice shall be
mailed, postage prepaid, to each holder of record (at the close of
business on the business day next preceding the day on which notice is
given) of Series A Preferred Shares to be redeemed, at the address
last shown on the records of the Corporation for such holder, or given
by the holder to the Corporation for the purpose of notice, or, if no
such address appears or is given, at the place where the principal
executive office of the Corporation is located, notifying such holder
of the redemption to be effected, specifying the date fixed for
redemption, the Mandatory Redemption Date or the Special Redemption
Date (collectively, the "Redemption Date"), the Redemption Price, the
place at which payment may be obtained and the date on which such
holder's exchange rights as to such shares terminate and calling upon
such holder to surrender to the Corporation, in the manner and at the
place designated, the certificate or certificates representing the
shares to be redeemed (the "Redemption Notice"). The shares of Series
A Preferred Shares shall be exchangeable (subject to the provisions of
paragraph 1 of Section D) at any time prior to the Redemption Date.
On or after the Redemption Date, each holder of such shares to be
redeemed shall surrender to the Corporation the certificate or
certificates representing such shares, in the manner and at the place
designated in the Redemption Notice, and thereupon the Redemption
Price of such shares shall be payable to the order of the person whose
name appears on such certificate or certificates as the owner thereof
and each surrendered
<PAGE>
<PAGE>
certificate shall be cancelled. Failure to give the required
Redemption Notice in a timely manner shall not render void the
mandatory redemption provisions contained in this Section E, and
failure to give such notice shall not alter or change the Mandatory
Redemption Date or the Special Redemption Date.
4. From and after the Redemption Date, all rights of the
holders of Series A Preferred Shares as holders of such shares (except
the right to receive the Redemption Price without interest upon
surrender of their certificate or certificates) shall cease with
respect to the Series A Preferred Shares and the Series A Preferred
Shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose whatsoever.
If the funds of the Corporation legally available for redemption of
shares of its stock on the Redemption Date are insufficient to redeem
the total number of shares to be redeemed on such date, those funds
which are legally available will be used to redeem the maximum
possible number of shares ratably among the holders of Series A
Preferred Shares to be redeemed. The Series A Preferred Shares not
redeemed shall remain outstanding and be entitled to all the rights
and preferences provided herein in accordance with the terms contained
herein. At any time thereafter when additional funds of the
Corporation are legally available for the redemption of shares of the
Corporation's stock, such funds will immediately be used to redeem the
balance of the shares which the Corporation has become obligated to
redeem on the Redemption Date but which it has not redeemed.
F. Ranking. With regard to rights to receive distributions
-------
upon the dissolution, liquidation or winding-up of the Corporation,
the Series A Preferred Shares shall rank prior to the Common Shares or
shares of any other class of capital stock of the Corporation.
G. Office or Agency of the Corporation. The Corporation's
-----------------------------------
principal executive office shall be deemed an office or agency of the
Corporation maintained for the transfer of Series A Preferred Shares
and otherwise to effectuate all other transactions, including without
limitation, exchange and redemption, in respect of the Series A
Preferred Shares. The Corporation may maintain such other offices or
agencies as it deems appropriate for such purposes upon notice to the
holders of the Series A Preferred Shares.
IN WITNESS WHEREOF, BALLY'S CASINO, INC. has caused this
certificate to be made under the seal of the Corporation,
<PAGE>
<PAGE>
signed by its Executive Vice President and attested by its Secretary,
this 27th day of December, 1994.
BALLY'S CASINO, INC.
By: /s/ Lee S. Hillman
--------------------------------
Lee S. Hillman
Executive Vice President
Attest:
/s/ Carol S. DePaul
--------------------
Carol S. DePaul
Secretary
<PAGE>
EXHIBIT 99.C (CE)
-----------------
GOLDBERG I
AWARD AGREEMENT
---------------
(Non-Qualified Stock Option)
This Award Agreement is made as of the 9th day of July, 1991,
between BALLY MANUFACTURING CORPORATION, a Delaware corporation
(hereinafter called the "Company") and ARTHUR M. GOLDBERG, an employee
of the Company or one or more of its Subsidiaries (hereinafter called
the "Employee").
WHEREAS, the Company has heretofore adopted the 1989
Incentive Plan (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award
agreement be executed to evidence the Non-Qualified Stock Option (the
"Award") granted to the Employee;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree, as follows:
1. Grant of Award. The Company hereby grants to the Employee
--------------
the right and option (hereinafter called the "Option") to purchase all
or any part of an aggregate of 700,000 shares of the Common Stock,
$.66 2/3 par value, of the Company ("Shares") (such number being
subject to adjustment as set forth herein and
NYFS04...:\30\20130\0001\2042\EXH1235Y.170
<PAGE>
<PAGE>
in the Plan) on the terms and conditions set forth herein and in the
Plan.
As a condition of the grant of the Option, the Employee
hereby agrees to, and does, relinquish and forfeit the right and
option to purchase all or any part of the aggregate of Seven Hundred
Fifty Thousand (750,000) Shares which was granted to the Employee
under the Plan on April 18, 1991.
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be treated by
the Company or the Employee as an Incentive Stock Option for federal
income tax purposes.
3. Purchase Price. The option price of the Shares covered by
--------------
the Option is $1.75 per Share.
4. Term of Award.
-------------
(a) The term of the Award shall be for a period of ten (10)
years from the date hereof, subject to earlier termination as
hereinafter provided, and
(b) Prior to its expiration or termination, and except as
hereinafter provided, the Award may be exercised within the
following time limitations:
(i) After one year from the date hereof it may be
exercised as to not more than one-third (1/3) of the Shares
originally subject to the Option.
<PAGE>
<PAGE>
(ii) After two years from the date hereof, it may be
exercised as to not more than an aggregate of two-thirds
(2/3) of the Shares originally subject to the Option.
(iii) After three years from the date hereof, it may be
exercised as to any part or all of the Shares originally
subject to the Option.
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or persons
entitled to exercise it shall deliver to the Treasurer of the
Company written notice of the number of full Shares with respect
to which the Award is to be exercised. Unless the Company, in
its discretion, establishes "cashless exercise" procedures
pursuant to Section 10.2 of the Plan, and unless the Committee,
in its discretion, permits the person or persons entitled to
exercise the Award to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in full
for any Shares being purchased. Such payment shall be in cash,
or, upon approval of the Committee, by certificates of Shares
held for more than six (6) months, duly endorsed in blank, equal
in value to the purchase price of the Shares to be purchased
based on their Fair Market Value on the date of exercise, or,
upon approval of the Committee, by a
<PAGE>
<PAGE>
combination of cash and Shares. No fractional Shares shall be
issued.
(b) No Shares shall be issued until full payment therefor
has been made, and Employee shall have none of the rights of a
stockholder in respect of such Shares until they are so issued.
6. Nontransferability. The Award shall not be
------------------
transferable otherwise than by will or the laws of descent and
distribution, and the Award may be exercised, during the lifetime of
the Employee, only by him or her.
7. Accelerated Vesting of Award. In the event that the
----------------------------
average of the closing prices per share of the Common Stock of the
Company on the New York Stock Exchange for twenty consecutive trading
days is $7.50 or more (the "Twenty Day Trading Period"), the Award may
be exercised by the Employee in full at any time after the Twenty Day
Trading Period, but not beyond the original term thereof. For
purposes of this Paragraph 7, the closing price of the Common Stock of
the Company for any trading day is the closing price of such Common
Stock for such trading day as set forth in the Wall Street Journal,
-------------------
Midwestern Edition, of the day following such trading day.
8. Termination of Employment. In the event that the
-------------------------
employment of the Employee shall be terminated (otherwise than by
reason of death, disability or retirement), the Award may be
<PAGE>
<PAGE>
exercised by the Employee (to the extent that he or she shall have
been entitled to do so at the termination of his or her employment) at
any time within three (3) months after such termination, but not
beyond the original term thereof. So long as the Employee shall
continue to be an employee of the Company or one or more of its
Subsidiaries, the Award shall not be affected by any change of duties
or position. Nothing in this Award Agreement shall confer upon the
Employee any right to continue in the employ of the Company or any of
its Subsidiaries or interfere in any way with the right of the Company
or any such Subsidiary to terminate his or her employment at any time.
Anything herein contained to the contrary notwithstanding, in the
event of any termination of the Employee's employment for cause, the
Award, to the extent not theretofore exercised, shall forthwith
terminate.
9. Death of Employee. If the Employee shall die while he
-----------------
or she shall be employed by the Company or one or more of its
Subsidiaries or within three (3) months after the termination of his
or her employment, the Award may be exercised in full by a legatee or
legatees of the Employee under his or her last will, or by his or her
personal representatives or distributees, at any time within one (1)
year after his or her death, but not beyond the original term of the
Award.
<PAGE>
<PAGE>
10. Disability of Employee. If the employment of the
----------------------
Employee shall terminate on account of his or her having become
"disabled", as defined in Section 22(e)(3) of the Code, the Award may
be exercised in full at the termination of his or her employment on
account of his or her becoming disabled, at any time within one (1)
year after the date on which his or her employment terminated, but not
beyond the original term of the Award.
11. Retirement of Employee. If the employment of the
----------------------
Employee shall terminate by reason of retirement entitling the
Employee to benefits under the provisions of any retirement plan of
the Company or a Subsidiary in which the Employee participates (or if
no such plan then exists, at or after age sixty-five (65)), the Award
may be exercised in full at any time within one year after the date on
which his or her employment terminated, but not beyond the original
term of the Award.
12. Taxes.
-----
(a) The Company shall have the right to require an Employee
entitled to receive Shares pursuant to the exercise of an Award
under the Plan to pay the Company the amount of any taxes which
the Company is or will be required to withhold with respect to
such Shares before the certificates for such Shares is delivered
pursuant to the Award. The Company may elect to deduct such
taxes from any other
<PAGE>
<PAGE>
amounts payable then or any time thereafter in cash or Shares or
otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Securities and Exchange Act of 1934 may satisfy his tax liability
with respect to the exercise of an Option by having the Company
withhold Shares otherwise issuable upon exercise of the Option,
if such Employee makes an irrevocable election, by way of a
written statement in a form acceptable to the Committee, at least
six (6) months before the date such tax liability is determined
or if the exercise of the option occurs during any Window Period.
13. Changes in Capital Structure. In the event of changes
----------------------------
in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or
exchanges of Shares, separations, reorganizations, liquidations, or
similar events, or in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or similar
transactions, the number and class of Shares subject to the Award
hereby granted and the option price thereof shall be correspondingly
equitably adjusted by the Committee as it shall decide in its sole
discretion.
14. Securities Law Compliance. The Award may not be
-------------------------
exercised and the Company shall not be required to issue any Shares
hereunder if such issuance would, in the judgment of the
<PAGE>
<PAGE>
Board or the Committee, constitute a violation of any state or federal
law, or of the rules or regulations of any governmental regulatory
body, or any securities exchange. The Company may, in its sole
discretion, require Employee to furnish the Company with appropriate
representations and a written investment agreement prior to the
exercise of the Award and the delivery of any Shares pursuant to the
Award.
15. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this Award is granted, are
hereby incorporated by reference and made as part hereof as if
specifically set forth herein, and to the extent of any conflict
between this Award Agreement and the terms contained in the aforesaid
Plan, the Plan shall control. To the extent any capitalized terms are
not otherwise defined herein, they shall have the meaning set forth in
the Plan.
IN WITNESS WHEREOF, the Company has caused this Award
Agreement to be duly executed by its officers thereunto duly
authorized, and the Employee has hereunto set his or her hand, all on
the day and year first above written.
BALLY MANUFACTURING
CORPORATION
By: /s/ Neil E. Jenkins
--------------------------
/s/ Arthur M. Goldberg
-----------------------------
Employee
<PAGE>
EXHIBIT 99.D (CE)
-----------------
GOLDBERG II
AWARD AGREEMENT
----------------
(Non-Qualified Stock Option)
This Award Agreement is made as of the 9th day of July, 1991,
between BALLY MANUFACTURING CORPORATION, a Delaware corporation
(hereinafter called the "Company") and ARTHUR M. GOLDBERG, an employee
of the Company or one or more of its Subsidiaries (hereinafter called
the "Employee").
WHEREAS, the Company has heretofore adopted the 1989 Incentive
Plan (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award agreement
be executed to evidence the Non-Qualified Stock Option (the "Award")
granted to the Employee;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree, as follows:
1. Grant of Award. The Company hereby grants to the Employee
--------------
the right and option (hereinafter called the "Option") to purchase all
or any part of an aggregate of 300,000 shares of Common Stock, $.66
2/3 par value, of the Company ("Shares") (such number being subject to
adjustment as set forth herein and in the Plan) on the terms and
NYFS04...:\30\20130\0001\2042\AGR1235Y.150
<PAGE>
<PAGE>
conditions set forth herein and in the Plan. Notwithstanding anything
to the contrary in this Award Agreement, the grant of the Option is
subject to the approval by the shareholders of the Company of an
amendment to the Plan increasing the number of Shares authorized to be
issued under the Plan by 1,000,000 Shares or more (the "Amendment").
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be treated by
the Company or the Employee as an Incentive Stock Option for federal
income tax purposes.
3. Purchase Price. The option price of the Shares covered by
--------------
the Option is $1.75 per Share.
4. Term of Award.
-------------
(a) The term of the Award shall be for a period of ten (10)
years from the date hereof, subject to earlier termination as
hereinafter provided, and
(b) Prior to its expiration or termination, and except as
hereafter provided, the Award may be exercised within the
following time limitations:
(i) After one year from the date hereof it may be
exercised as to not more than one-third (1/3) of the Shares
originally subject to the Option.
(ii) After two years from the date hereof, it may be
exercised as to not more than an aggregate of two-thirds
(2/3) of the Shares originally subject to the Option.
<PAGE>
<PAGE>
(iii) After three years from the date hereof, it
may be exercised as to any part or all of the Shares
originally subject to the Option.
(c) Notwithstanding anything to the contrary in this Award
Agreement, the Employee may not exercise the Award (or any
portion thereof) prior to the approval of the Amendment by the
shareholders of the Company.
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or persons
entitled to exercise it shall deliver to the Treasurer of the
Company written notice of the number of full Shares with respect
to which the Award is to be exercised. Unless the Company, in
its discretion, establishes "cashless exercise" procedures
pursuant to Section 10.2 of the Plan, and unless the Committee,
in its discretion, permits the person or persons entitled to
exercise the Award to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in full
for any Shares being purchased. Such payment shall be in cash,
or, upon approval of the Committee, by certificates of Shares
held for more than six (6) months, duly endorsed in blank, equal
in value to the purchase price of the Shares to be purchased
based on their Fair Market Value on the date of exercise, or,
upon approval of the Committee, by a combination of cash and
Shares. No fractional Shares shall be issued.
<PAGE>
<PAGE>
(b) No Shares shall be issued until full payment therefor
has been made, and Employee shall have none of the rights of a
stockholder in respect of such Shares until they are so issued.
6. Nontransferability. The Award shall not be transferable
------------------
otherwise than by will or the laws of decent and distribution, and the
Award may be exercised, during the lifetime of the Employee, only by
him or her.
7. Accelerated Vesting of Award. In the event that the average
----------------------------
of the closing prices per share of the Common Stock of the Company on
the New York Stock Exchange for twenty consecutive trading days is
$7.50 or more (the "Twenty Day Trading Period"), the Award may be
exercised by the Employee in full at any time after the Twenty Day
Trading Period, but not beyond the original term thereof. For
purposes of this Paragraph 7, the closing price of the Common Stock of
the Company for any trading day is the closing price of such Common
Stock for such trading day as set forth in the Wall Street Journal
-------------------
Midwestern edition, of the day following such trading day.
8. Termination of Employment. In the event that the employment
-------------------------
of the Employee shall be terminated (otherwise than by reason of
death, disability or retirement), the Award may be exercised by the
Employee (to the extent that he or she shall have been entitled to do
so at the termination of his or her employment) at any time within
three (3) months after such termination, but not beyond the original
term thereof. So long as the Employee shall continue to be an
employee of the Company or one or more of its
<PAGE>
<PAGE>
Subsidiaries, the Award shall not be affected by any change of duties
or position. Nothing in this Award Agreement shall confer upon the
Employee any right to continue in the employ of the Company or any of
its Subsidiaries or interfere in any way with the right of the Company
or any such Subsidiary to terminate his or her employment at any time.
Anything herein contained to the contrary notwithstanding, in the
event of any termination of the Employee's employment for cause, the
Award, to the extent not theretofore exercised, shall forthwith
terminate.
9. Death of Employee. If the Employee shall die while he or
-----------------
she shall be employed by the Company or one or more of its
Subsidiaries or within three (3) months after the termination of his
or her employment, the Award may be exercised in full by a legatee or
legatees of the Employee under his or her last will, or by his or her
personal representatives or distributees, at any time within one (1)
year after his or her death, but not beyond the original term of the
Award.
10. Disability of Employee. If the employment of the Employee
----------------------
shall terminate on account of his or her having become "disabled", as
defined in Section 22(e)(3) of the Code, the Award may be exercised in
full at the termination of his or her employment on account of his or
her becoming disabled, at any time within one (1) year after the date
on which his or her employment terminated, but not beyond the original
term of the Award.
11. Retirement of Employee. If the employment of the Employee
----------------------
shall terminate by reason of retirement entitling the Employee to
benefits under the provisions of any
<PAGE>
<PAGE>
retirement plan of the Company or a Subsidiary in which the Employee
participates (or if no such plan then exists, at or after age sixty-
five (65)), the Award may be exercised in full at any time within one
year after the date on which his or her employment terminated, but not
beyond the original term of the Award.
12. Taxes.
-----
(a) The Company shall have the right to require an Employee
entitled to receive Shares pursuant to the exercise of an Award
under the Plan to pay the Company the amount of any taxes which
the Company is or will be required to withhold with respect to
such Shares before the certificates for such Shares is delivered
pursuant to the Award. The Company may elect to deduct such
taxes from any other amounts payable then or any time thereafter
in cash or Shares or otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Securities and Exchange Act of 1934 may satisfy his tax liability
with respect to the exercise of an Option by having the Company
withhold Shares otherwise issuable upon exercise of the Option,
if such Employee makes an irrevocable election, by way of a
written statement in a form acceptable to the Committee, at least
six (6) months before the date such tax liability is determined
or if the exercise of the option occurs during any Window Period.
<PAGE>
<PAGE>
13. Changes in Capital Structure. In the event of changes in
----------------------------
all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or
exchanges of Shares, separations, reorganizations, liquidations, or
similar events, or in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or similar
transactions, the number and class of Shares subject to the Award
hereby granted and the option price thereof shall be correspondingly
equitably adjusted by the Committee as it shall decide in its sole
discretion.
14. Securities Law Compliance. The Award may not be exercised
-------------------------
and the Company shall not be required to issue any Shares hereunder if
such issuance would, in the judgment of the Board or the Committee,
constitute a violation of any state or federal law, or of the rules or
regulations of any governmental regulatory body, or any securities
exchange. The Company may, in its sole discretion, require Employee
to furnish the Company with appropriate representations and a written
investment agreement prior to the exercise of the Award and the
delivery of any Shares pursuant to the Award.
15. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this Award is granted, are
hereby incorporated by reference and made as part hereof as if
specifically set forth herein, and to the extent of any conflict
between this Award Agreement and the terms contained in the aforesaid
Plan, the Plan shall control. To the extent any capitalized terms are
not otherwise defined herein, they shall have the meaning set forth in
the Plan.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Award Agreement
to be duly executed by its officers hereunto duly authorized, and the
Employee has hereunto set his or her hand, all on the day and year
first above written.
BALLY MANUFACTURING
CORPORATION
By: /s/ Neil E. Jenkins
---------------------------
/s/ Arthur M. Goldberg
------------------------------
Employee
<PAGE>
EXHIBIT 99.E (CE)
-----------------
AMENDED AND RESTATED AWARD AGREEMENT
------------------------------------
(Non-Qualified Stock Option in tandem with
Stock Appreciation Rights)
This Amended and Restated Award Agreement ("Award
Agreement") is made as of the 25th day of March, 1992, between BALLY
MANUFACTURING CORPORATION, a Delaware corporation (hereinafter called
the "Company") and ARTHUR M. GOLDBERG, an employee of the Company or
one or more of its Subsidiaries (hereinafter called the "Employee").
WHEREAS, the Company has heretofore adopted the 1989
Incentive Plan (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award
agreement be executed to evidence the Non-Qualified Stock Option and
stock appreciation rights (the "Award") granted to the Employee;
WHEREAS, the Company and Employee entered into an Award
Agreement on December 31, 1990 (the "Original Agreement") setting
forth the terms and provisions pursuant to which the Employee was
granted certain stock options and stock appreciation rights under the
Plan;
WHEREAS, the Company and Employee desire to amend and
restate in its entirety the Original Agreement solely to reflect a
provision regarding the accelerated vesting of the Award, which
provision was approved by the Compensation and Stock Option
NYFS04...:\30\20130\0001\2042\EXH1235Y.130
<PAGE>
<PAGE>
Committee of the Board of Directors of the Company at a meeting held
on March 25, 1992;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree as follows:
1. Grant of Award. The Company hereby grants to the
--------------
Employee the right and option (hereinafter called the "Option") to
purchase all or any part of an aggregate of 500,000 shares of the
Common Stock, $.66 2/3 par value, of the Company ("Shares") (such
number being subject to adjustment as set forth herein and in the
Plan), and hereby grants a like number of stock appreciation rights
("SARs") exercisable in lieu of any part or all of the Option on the
terms and conditions set forth herein and in the Plan.
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be treated by
the Company or the Employee as an Incentive Stock Option for Federal
income tax purposes.
3. Purchase Price. The option price of the Shares covered
--------------
by the Option is $2.25 per Share.
4. Term of Award.
-------------
(a) The Term of the Award shall be for a period of ten
years from the date of the Original Agreement,
<PAGE>
<PAGE>
subject to earlier termination as hereinafter provided, and
(b) prior to its expiration or termination the Award
may be exercised within the following time limitations:
(i) After one year from the date of the
Original Agreement it may be exercised as to not more
than one-third (1/3) of the Shares originally subject
to the Option or one-third (1/3) of the SARs.
(ii) After two years from the date of the
Original Agreement, it may be exercised as to not more
than an aggregate of two-thirds (2/3) of the Shares
originally subject to the Option or two-thirds (2/3) of
the SARs.
(iii) After three years from the date of the
Original Agreement, it may be exercised as to any part
or all of the Shares originally subject to the Option
or any part or all of the SARs.
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or
persons entitled to exercise it shall deliver to the
Treasurer of the Company written notice of the number of
full Shares with respect to which the Award is to be
exercised and whether such exercise is with respect to
<PAGE>
<PAGE>
the Option or the SARs or a combination of each. Unless the
Company, in its discretion, establishes "cashless exercise"
procedures pursuant to Section 10.2 of the Plan, and unless
the Committee, in its discretion, permits the person or
persons entitled to exercise the Award to utilize such
"cashless exercise" procedures, the notice shall be accompanied
by payment in full for any Shares being purchased. Such payment
shall be in cash, or, upon approval of the Committee, by
certificates of Shares held for more than six (6) months, duly
endorsed in blank, equal in value to the purchase price of
the Shares to be purchased based on their Fair Market Value
on the date of exercise, or, upon approval of the Committee,
by a combination of cash and Shares. No fractional Shares
shall be issued.
(b) No Shares shall be issued until full payment
therefor has been made, and Employee shall have none of the
rights of a stockholder in respect of such Shares until they
are so issued.
(c) The notice of exercise of the SARs shall be
directed to the Treasurer of the Company, accompanied
<PAGE>
<PAGE>
by a copy of this Award Agreement, and shall state what
portion of the SARs exercised the Employee desires to be
paid in cash and what portion of the SARs exercised the
Employee desires to be paid in Shares. The Committee may
honor such request or may satisfy the Award in cash or
Shares, or some combination of each, as it shall determine
in its sole discretion. On exercise of the Award, the
Company shall pay the Employee for the SARs so exercised an
amount of cash equal to the product of: (i) the number of
SARs exercised which the Committee has determined are to be
paid in cash, and (ii) the difference between the Fair
Market Value of a Share on the date of such exercise and the
price at which a Share could be acquired on exercise of this
Option. To the extent the Employee has exercised SARs which
the Committee has determined are to be paid in Shares, the
Company shall pay the Employee Shares having an aggregate
Fair Market Value on the date of exercise equal to the
product of: (i) the number of SARs exercised and which the
Committee has determined are to be paid in Shares, and (ii)
the difference between the Fair Market Value of a Share on
the date of such exercise and the price at which a Share
could be acquired on exercise of this Option. The number of
Shares to be paid pursuant to the
<PAGE>
<PAGE>
preceding sentence shall be rounded down to the nearest
whole number of Shares.
(d) Upon the exercise of any part of the Option, the
related SARs equal in number to the number of Shares
purchased pursuant to such Option exercise shall be
cancelled and shall no longer be exercisable under this
Award. Upon the exercise of any SARs, that part of the
Option to which such exercised SARs relate shall be
cancelled and shall no longer be exercisable under this
Award. The Options and SARs so cancelled shall be from that
portion of the Award then otherwise exercisable pursuant to
paragraph 4(b) herein.
(e) Notwithstanding the provisions of paragraph 4(b)
or anything else to the contrary herein, no SARs exercised
under this Award shall be paid in cash if, at the time of
exercise the Employee is subject to Section 16(b) of the
Securities Exchange Act of 1934 ("Exchange Act"), unless
such SARs are exercised during the period beginning on the
third business day following the date of release of the
financial data specified in Paragraph (e)(1)(ii) of Rule
16b-3 of the General Rules and Regulations under the
Exchange Act and ending on the twelfth business day
following such date ("Window Period").
<PAGE>
<PAGE>
6. Nontransferability. The Award shall not be transferable
------------------
otherwise than by will or the laws of the descent and distribution,
and the Award may be exercised, during the lifetime of the Employee,
only by him or her.
7. Accelerated Vesting of Award. In the event that the
----------------------------
average of the closing prices per share of the Common Stock of the
Company on the New York Stock Exchange for twenty consecutive trading
days is $7.50 or more (the "Twenty Day Trading Period"), the Award may
be exercised by the Employee in full at any time after the Twenty Day
Trading Period, but not beyond the original term thereof. For
purposes of this Paragraph 7, the closing price of the Common Stock of
the Company for any trading day is the closing price of such Common
Stock for such trading day as set forth in the Wall Street Journal,
-------------------
Midwestern Edition, of the day following such trading day.
8. Termination of Employment. In the event that the
-------------------------
employment of the Employee shall be terminated (otherwise than by
reason of death, disability or retirement), the Award may be exercised
by the employee (to the extent that he or she shall have been entitled
to do so at the termination of his or her employment) at any time
within three months after such termination, but not beyond the
original term thereof. So long as the Employee shall continue to be
an employee of the Company or one or more of its Subsidiaries, the
Award shall not be affected by any change of duties or position.
Nothing in this
<PAGE>
<PAGE>
Award Agreement shall confer upon the Employee any right to continue
in the employ of the Company or any of its Subsidiaries or interfere
in any way with the right of the Company or any such Subsidiary to
terminate his or her employment at any time. Anything herein
contained to the contrary notwithstanding, in the event of any
termination of the Employee's employment for cause, the Award, to the
extent not theretofore exercised, shall forthwith terminate.
9. Death of Employee. If the Employee shall die while he
-----------------
or she shall be employed by the Company or one or more of its
Subsidiaries or within three months after the termination of his or
her employment, the Award may be exercised in full by a legatee or
legatees of the Employee under his or her last will, or by his or her
personal representatives or distributees, at any time within one year
after his or her death, but not beyond the original term of the Award.
10. Disability of Employee. If the employment of the
----------------------
Employee shall terminate on account of his or her having become
"disabled," as defined in Section 22(e)(3) of the Code, the Award may
be exercised in full at the termination of his or her employment on
account of his or her becoming disabled, at any time within one year
after the date on which his or her employment terminated, but not
beyond the original term of the Award.
<PAGE>
<PAGE>
11. Retirement of Employee. If the employment of the
----------------------
Employee shall terminate by reason of retirement entitling the
Employee to benefits under the provisions of any retirement plan of
the Company or a Subsidiary in which the Employee participates (or if
no such plan then exists, at or after age sixty-five (65)), the Award
may be exercised in full at any time after the six month anniversary
of the date of grant of the Award and within one year after the date
on which his or her employment terminated, but not beyond the original
term of the Award.
12. Taxes.
-----
(a) The Company shall have the right to require an
Employee entitled to receive Shares pursuant to the exercise
of an Award under the Plan to pay the Company the amount of
any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate
for such Shares is delivered pursuant to the Award. The
Company may elect to deduct such taxes from any other
amounts payable then or any time thereafter in cash or
Shares or otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Exchange Act may satisfy his tax liability with respect to
the exercise of the Option or SARs by having the Company
withhold Shares otherwise issuable upon exercise of the
Option or SARs, if such Employee makes
<PAGE>
<PAGE>
an irrevocable election, by way of written statement in a
form acceptable to the Committee, at least six (6) months
before the date such tax liability is determined or during
any Window Period.
13. Changes in Capital Structure. In the event of changes
----------------------------
in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or
exchanges of Shares, separations, reorganizations, liquidations, or
similar events, as in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or other
similar transactions, the number and class of Shares subject to the
Award hereby granted, the option price thereof, and the number of SARs
hereby granted shall be correspondingly equitably adjusted by the
Committee as it shall decide in its sole discretion.
14. Securities Law Compliance. The Award may not be
-------------------------
exercised and the Company shall not be required to issue any Shares
hereunder if such issuance would, in the judgment of the Board or the
Committee, constitute a violation of any state or federal law, or of
the rules or regulations of any governmental regulatory body, or any
securities exchange. The Company may, in its sole discretion, require
the Employee to furnish the Company with appropriate representations
and a written investment agreement prior to the exercise of the Award
and the delivery of any Shares pursuant to the Award.
<PAGE>
<PAGE>
15. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this Award is granted, are
hereby incorporated by reference and made as part hereof as if
specifically set forth herein, and to the extent of any conflict
between this Award Agreement and the terms contained in the aforesaid
Plan, the Plan shall control. To the extent any capitalized terms are
not otherwise defined herein, they shall have the meaning set forth in
the Plan.
IN WITNESS WHEREOF, the Company has caused this Award
Agreement to be duly executed by its officer thereunto duly
authorized, and the Employee has hereunto set his or her hand, all on
the day and year first above written.
BALLY MANUFACTURING CORPORATION
By: /s/ Lee S. Hillman
----------------------------------
ARTHUR M. GOLDBERG
/s/ Arthur M. Goldberg
--------------------------------------
<PAGE>
EXHIBIT 99.F (CE)
-----------------
AWARD AGREEMENT
---------------
(Non-Qualified Stock Option)
This Award Agreement is made as of the 30th day of
----
September, 1993, between BALLY MANUFACTURING CORPORATION, a Delaware
---------
corporation (hereinafter called the "Company") and ARTHUR M. GOLDBERG,
an employee of the Company (hereinafter called the "Employee").
WHEREAS, the Company has heretofore adopted the 1989
Incentive Plan, as amended from time to time, (the "Plan");
WHEREAS, it is a requirement of the Plan that an award
agreement be executed to evidence the Non-Qualified Stock Option (the
"Award") granted to the Employee; and
WHEREAS, as a condition of the grant of the Option, the
Employee must consent to the cancellation of the Options to acquire
450,000 shares of the Common Stock, $.66 2/3 par value, of the Company
("Shares") at a price of $9.625 per Share which were granted to him
under the Plan on June 23, 1993 (the "June 23 Options").
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree, as follows:
NYFS04...:\30\20130\0001\2042\AGR1235Y.240<PAGE>
<PAGE>
1. Grant of Award. The Company hereby grants to the
--------------
Employee the right and option (hereinafter called the "Option") to
purchase all or any part of an aggregate of 450,000 Shares (such
number being subject to adjustment as set forth herein and in the
Plan) on the terms and conditions set forth herein and in the Plan.
Notwithstanding anything to the contrary in this Award Agreement, the
grant of the Option is conditioned on (i) the approval by the
shareholders of the Company of Amendment No. ___ to the Plan, (ii) the
approval by the shareholders of the Company of amendments increasing
the number of Shares authorized to be issued under the Plan in the
aggregate to 5,300,000 Shares, and (iii) the Employee's consent to the
cancellation of the June 23 Options. The execution of this Award
Agreement by the Employee shall evidence his consent to the
cancellation of the June 23 Option.
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be treated by
the Company or the Employee as an Incentive Stock Option for federal
income tax purposes.
3. Purchase Price. The option price of the Shares covered
--------------
by the Option is $9.625 per Share.
<PAGE>
<PAGE>
4. Term of Award.
-------------
(a) The term of the Award shall be for a period of ten
(10) years from the date of this Agreement, subject to
earlier termination as hereinafter provided, and
(b) Prior to its expiration or termination, and except
as hereinafter provided, the Award may be exercised within
the following time limitations:
(i) After one year from the date of this
Agreement, it may be exercised as to not more than one-
third (1/3) of the Shares originally subject to the
Option.
(ii) After two years from the date of this
Agreement, it may be exercised as to not more than an
aggregate of two-thirds (2/3) of the Shares originally
subject to the Option.
(iii) After three years from the date of this
Agreement, it may be exercised as to any part or all of
the Shares originally subject to the Option.
(c) Notwithstanding anything to the contrary in this
Award Agreement, the Employee may not exercise the Award (or
any portion thereof) prior to the approval of the Amendment
dated September 30, 1993 and the amendments increasing the
number of Shares authorized
<PAGE>
<PAGE>
to be issued under the Plan in the aggregate to 5,300,000
Shares by the shareholders of the Company.
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or
persons entitled to exercise it shall deliver to the
Treasurer of the Company written notice of the number of
full Shares with respect to which the Award is to be
exercised. Unless the Company, in its discretion,
establishes "cashless exercise" procedures pursuant to
Section 10.2 of the Plan, and unless the Committee, in its
discretion, permits the person or persons entitled to
exercise the Award to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in
full for any Shares being purchased. Such payment shall be
in cash, or, upon approval of the Committee, by certificates
of Shares held for more than six (6) months, duly endorsed
in blank, equal in value to the purchase price of the Shares
to be purchased based on their Fair Market Value on the date
of exercise, or upon approval of the Committee, by a combination
of cash and Shares. No fractional Shares shall be issued.
(b) No Shares shall be issued until full payment
therefor has been made, and Employee shall have none of
<PAGE>
<PAGE>
the rights of a shareholder in respect of such Shares until
they are so issued.
6. Nontransferability. The Award shall not be transferable
------------------
otherwise than by will or the laws of descent and distribution, and
the Award may be exercised, during the lifetime of the Employee, only
by him or her.
7. Termination of Employment. In the event that the
-------------------------
employment of the Employee shall be terminated (otherwise than by
reason of death, disability or retirement), the Award may be exercised
by the Employee (to the extent that he or she shall have been entitled
to do so at the termination of his or her employment) at any time
within three (3) months after such termination, but not beyond the
original term thereof. So long as the Employee shall continue to be
an employee of the Company or one or more of its Subsidiaries, the
Award shall not be affected by any change of duties or position.
Nothing in this Award Agreement shall confer upon the Employee any
right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or
any such Subsidiary to terminate his or her employment at any time.
Anything herein contained to the contrary notwithstanding, in the
event of any termination of the Employee's employment for cause, the
Award, to the extent not theretofore exercised, shall forthwith
terminate.
<PAGE>
<PAGE>
8. Death of Employee. If the Employee shall die while he
-----------------
or she shall be employed by the Company or one or more of its
Subsidiaries or within three (3) months after the termination of his
or her employment, the Award may be exercised in full by a legatee or
legatees of the Employee under his or her last will, or by his or her
personal representatives or distributees, at any time with one (1)
year after his or her death, but not beyond the original term of the
Award.
9. Disability of Employee. If the employment of the
----------------------
Employee shall terminate on account of his or her having become
"disabled", as defined in Section 22(e)(3) of the Code, the Award may
be exercised in full at the termination of his or her employment on
account of his or her becoming disabled, at any time within one (1)
year after the date on which his or her employment terminated, but
not beyond the original term of the Award.
10. Retirement of Employee. If the employment of the
----------------------
Employee shall terminate by reason of retirement entitling the
Employee to benefits under the provisions of any retirement plan of
the Company or a Subsidiary in which the Employee participates (or if
no such plan then exists, at or after age sixty-five (65)), the Award
may be exercised in full at any time within one (1) year after the
date on which his or her employment terminated, but not beyond the
original term of the Award.
<PAGE>
<PAGE>
11. Taxes.
-----
(a) The Company shall have the right to require an
Employee entitled to receive Shares pursuant to the exercise
of an Award under the Plan to pay the Company the amount of
any taxes which the Company is or will be required to with-
hold with respect to such Shares before the certificates for
such Shares is delivered pursuant to the Award. The Company
may elect to deduct such taxes from any other amounts
payable then or any time thereafter in cash or Shares or
otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Securities and Exchange Act of 1934 ("Section 16(b)") at the
time of exercise may satisfy his tax liability with respect
to the exercise of an Option by having the Company withhold
Shares otherwise issuable upon exercise of the Option, if
such Employee makes an irrevocable election, by way of a
written statement in a form acceptable to the Committee, at
least six (6) months before the date such tax liability is
determined or if the exercise of the option occurs during
any Window Period or in any other manner which meets the
requirements for exemption pursuant to Section 16(b) and the
regulations thereunder.
<PAGE>
<PAGE>
12. Changes in Capital Structure. In the event of changes
----------------------------
in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or
exchanges of Shares, separations, reorganizations, liquidations, or
similar events, or in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or similar
transactions, the number and class of Shares subject to the Award
hereby granted and the option price thereof shall be correspondingly
equitably adjusted by the Committee as it shall decide in its sole
discretion.
13. Securities Law Compliance. The Award may not be
-------------------------
exercised and the Company shall not be required to issue any Shares
hereunder if such issuance would, in the judgment of the Board or the
Committee, constitute a violation of any state of federal law, or of
the rules or regulations of any government regulatory body, or any
securities exchange. The Company may, in its sole discretion, require
Employee to furnish the Company with appropriate representations and a
written investment agreement prior to the exercise of the Award and
the delivery of any Shares pursuant to the Award.
14. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this award is granted, are
hereby incorporated by reference and made a part hereof as if
specifically set forth herein, and to the extent of any conflict
between this Award Agreement and the terms contained
<PAGE>
<PAGE>
in the Plan, the Plan shall control. To the extent any capitalized
terms are not otherwise defined herein, they shall have the meaning
set forth in the Plan.
IN WITNESS WHEREOF, the Company has caused this Award
Agreement to be duly executed by its officers thereunto duly authorized,
and the Employee has hereunto set his or her hand, all on the day
and year first above written.
BALLY MANUFACTURING
CORPORATION
By: /s/ Carol Stone DePaul
---------------------------
Secretary
/s/ Arthur M. Goldberg
------------------------------
Employee
<PAGE>
EXHIBIT 99.G (CE)
-----------------
AWARD AGREEMENT
---------------
(Non-Qualified Stock Option)
This Award Agreement is made as of the 9th day of November,
1994, between BALLY ENTERTAINMENT CORPORATION, a Delaware corporation
(hereinafter called the "Company") and Arthur M. Goldberg, an employee
of the Company or one or more of its Subsidiaries (hereinafter called
the "Employee").
WHEREAS, the Company has heretofore adopted the 1989
Incentive Plan (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award
agreement be executed to evidence the Non-Qualified Stock Option (the
"Award") granted to the Employee;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree, as follows:
1. Grant of Award. The Company hereby grants to the
--------------
Employee the right and option (hereinafter called the "Option") to
purchase all or any part of an aggregate of 35,000 shares of the
Common Stock, $.66 2/3 par value, of the Company ("Shares") (such
number being subject to adjustment as set forth herein and in the
Plan) on the terms and conditions set forth herein and in the Plan.
Notwithstanding anything to the contrary in this Award Agreement, the
grant of the Option is subject to the approval by
NYFS04...:\30\20130\0001\2042\EXH1235Y.480
<PAGE>
<PAGE>
the shareholders of the Company of any amendments to the Plan (the
"Amendments"). In the event shareholders do not approve the
Amendments, this award agreement is null and void.
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be treated by
the Company or the Employee as an Incentive Stock Option for federal
income tax purposes.
3. Purchase Price. The option price of the Shares covered
--------------
by the Option is $6.75 per Share.
4. Term of Award.
-------------
(a) The term of the Award shall be for a period of ten
(10) years from the date hereof, subject to earlier
termination as hereinafter provided, and
(b) Prior to its expiration or termination, and except
as hereinafter provided, the Award may exercised within the
following time limitations:
(i) After one year from the date hereof it may be
exercised as to not more than one-third (1/3) of the
Shares originally subject to the Option.
(ii) After two years from the date hereof, it may
be exercised as to not more than an aggregate of two-
thirds (2/3) of the Shares originally subject to the
Option.
<PAGE>
<PAGE>
(iii) After three years from the date hereof, it
may be exercised as to any part or all of the Shares
originally subject to the Option.
(c) Notwithstanding anything to the contrary in this
Award Agreement, the Employee may not exercise the Award (or
any portion thereof) prior to the approval of the Amendments
by the shareholders of the Company.
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or
persons entitled to exercise it shall deliver to the
Treasurer of the Company written notice of the number of
full Shares with respect to which the Award is to be
exercised. Unless the Company, in its discretion,
establishes "cashless exercise" procedures pursuant to
Section 10.2 of the Plan, and unless the Committee, in its
discretion, permits the person or persons entitled to
exercise the Award to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in
full for any Shares being purchased. Such payment shall be
in cash, or, upon approval of the Committee, by certificates
of Shares held for more than six (6) months, duly endorsed
in blank, equal in value to the purchase price of the Shares
to be purchased based on their Fair Market Value on the date
of
<PAGE>
<PAGE>
exercise, or, upon approval of the Committee, by a
combination of cash and Shares. No fractional Shares shall
be issued.
(b) No Shares shall be issued until full payment
therefor has been made, and Employee shall have none of the
rights of a stockholder in respect of such Shares until they
are so issued.
6. Nontransferability. The Award shall not be
------------------
transferable otherwise than by will or the laws of descent and
distribution, and the Award may be exercised, during the lifetime of
the Employee, only by him or her.
7. Termination of Employment. In the event that the
-------------------------
employment of the Employee shall be terminated (otherwise than by
reason of death, disability or retirement), the Award may be exercised
by the Employee (to the extent that he or she shall have been entitled
to do so at the termination of his or her employment) at any time
within ninety (90) days after such termination, but not beyond the
original term thereof. So long as the Employee shall continue to be
an employee of the Company or of one or more of its Subsidiaries, the
Award shall not be affected by any change of duties or position.
Nothing in this Award Agreement shall confer upon the Employee any
right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or
any such
<PAGE>
<PAGE>
Subsidiary to terminate his or her employment at any time. Anything
herein contained to the contrary notwithstanding, in the event of any
termination of the Employee's employment for cause, the Award, to the
extent not theretofore exercised, shall forthwith terminate.
8. Death of Employee. If the Employee shall die while he
-----------------
or she shall be employed by the Company or one or more of its
Subsidiaries or within ninety (90) days after the termination of his
or her employment, the Award may be exercised in full by a legatee or
legatees of the Employee under his or her last will, or by his or her
personal representatives or distributees, at any time within three
hundred sixty five (365) days after his or her death, but not beyond
the original term of the Award.
9. Disability of Employee. If the employment of the
----------------------
Employee shall terminate on account of his or her having become
"disabled", as defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended, the Award may be exercised in full at the
termination of his or her employment on account of his or her becoming
disabled, at any time within three hundred sixty five (365) days after
the date on which his or her employment terminated, but not beyond the
original term of the Award.
<PAGE>
<PAGE>
10. Retirement of Employee. If the employment of the
----------------------
Employee shall terminate by reason of retirement entitling the
Employee to benefits under the provisions of any retirement plan of
the Company or a Subsidiary in which the Employee participates (or if
no such plan then exists, at or after age sixty-five (65)), the Award
may be exercised in full at any time within three hundred sixty five
(365) days after the date on which his or her employment terminated
but not beyond the original term of the Award.
11. Taxes.
-----
(a) The Company shall have the right to require an
Employee entitled to receive Shares pursuant to the exercise
of an Award under the Plan to pay the Company the amount of
any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate
for such Shares is delivered pursuant to the Award. The
Company may elect to deduct such taxes from any other
amounts payable then or any time thereafter in cash or
Shares or otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Securities and Exchange Act of 1934 may satisfy his tax
liability with respect to the exercise of the Award by
having the Company withhold Shares otherwise
<PAGE>
<PAGE>
issuable upon exercise of the Award, if such Employee makes
an irrevocable election, by way of a written statement in a
form acceptable to the Committee, at least six (6) months
before the exercise of the Award or if the exercise of the
option occurs during any Window Period.
12. Changes in Capital Structure. In the event of changes
----------------------------
in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidation, combinations or
exchanges of Shares, separations, reorganization, liquidations, or
similar events, or in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or similar
transactions, the number and class of Shares subject to the Award
hereby granted and the option price thereof shall be correspondingly
equitably adjusted by the Committee as it shall decide in its sole
discretion.
13. Securities Law Compliance. The Award may not be
-------------------------
exercised and the Company shall not be required to issue any Shares
hereunder if such issuance would, in the judgement of the Board or the
Committee, constitute a violation of any state or federal law, or of
the rules or regulations of any governmental regulatory body, or any
securities exchange. The Company may, in its sole discretion, require
Employee to furnish the Company with appropriate representations and a
written investment agreement
<PAGE>
<PAGE>
prior to the exercise of the Award and the delivery of any Shares
pursuant to the Award.
14. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this Award is granted, are
hereby incorporated by reference and made as part hereof as if
specifically set forth herein, and to the extent of any conflict
between this Award Agreement and the terms contained in the aforesaid
Plan, the Plan shall control. To the extent any capitalized terms are
not otherwise defined herein, they shall have the meaning set forth in
the Plan.
IN WITNESS WHEREOF, the Company has caused this Award
Agreement to be duly executed by its officers thereunto duly
authorized, and the Employee has hereunto set his or her hand, all as
of the day and year first above written.
BALLY ENTERTAINMENT
CORPORATION
By: /s/ Carol DePaul
--------------------------------
its Secretary
/s/ Arthur M. Goldberg
-----------------------------------
Employee
<PAGE>
EXHIBIT 99.H (CE)
-----------------
AWARD AGREEMENT
---------------
(Non-Qualified Stock Option)
This Award Agreement is made as of the 9th day of November,
1994, between BALLY ENTERTAINMENT CORPORATION, a Delaware corporation
(hereinafter called the "Company") and Arthur M. Goldberg, an employee
of the Company or one or more of its Subsidiaries (hereinafter called
the "Employee").
WHEREAS, the Company has heretofore adopted the 1989
Incentive Plan (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award
agreement be executed to evidence the Non-Qualified Stock Option (the
"Award") granted to the Employee;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration,
the parties hereto have agreed, and do hereby agree, as follows:
1. Grant of Award. The Company hereby grants to the
--------------
Employee the right and option (hereinafter called the "Option") to
purchase all or any part of an aggregate of 115,000 shares of the
Common Stock, $.66 2/3 par value, of the Company ("Shares") (such
number being subject to adjustment as set forth herein and in the
Plan) on the terms and conditions set forth herein and in the Plan.
2. Type of Option. The Option granted under this Award
--------------
Agreement is a Non-Qualified Stock Option and shall not be
NYFS04...:\30\20130\0001\2042\EXH1235Y.470
<PAGE>
<PAGE>
treated by the Company or the Employee as an Incentive Stock Option
for federal income tax purposes.
3. Purchase Price. The option price of the Shares covered
--------------
by the option is $6.75 per Share.
4. Term of Award.
-------------
(a) The term of the Award shall be for a period of ten
(10) years from the date hereof, subject to earlier
termination as hereinafter provided, and
(b) Prior to its expiration or termination, and except
as hereinafter provided, the Award may be exercised within
the following time limitations:
(i) After one year from the date hereof it may be
exercised as to not more than one-third (1/3) of the
Shares originally subject to the Option.
(ii) After two years from the date hereof, it may
be exercised as to not more than an aggregate of two-
thirds (2/3) of the Shares originally subject to the
Option.
(iii) After three years from the date hereof, it
may be exercised as to any part or all of the Shares
originally subject to the Option.
<PAGE>
<PAGE>
5. Exercise of Award.
-----------------
(a) In order to exercise the Award, the person or
persons entitled to exercise it shall deliver to the
Treasurer of the Company written notice of the number of
full Shares with respect to which the Award is to be
exercised. Unless the Company, in its discretion,
establishes "cashless exercise" procedures pursuant to
Section 10.2 of the Plan, and unless the Committee, in its
discretion, permits the person or persons entitled to
exercise the Award to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in
full for any Shares being purchased. Such payment shall be
in cash, or, upon approval of the Committee, by certificates
of Shares held for more than six (6) months, duly endorsed
in blank, equal in value to the purchase price of the Shares
to be purchased based on their Fair Market Value on the date
of exercise, or, upon approval of the Committee, by a
combination of cash and Shares. No fractional Shares shall
be issued.
(b) No Shares shall be issued until full payment
therefor has been made, and Employee shall have none of the
rights of a stockholder in respect of such Shares until they
are so issued.
<PAGE>
<PAGE>
6. Nontransferability. The Award shall not be
------------------
transferable otherwise than by will or the laws of descent and
distribution, and the Award may be exercised, during the lifetime of
the Employee, only by him or her.
7. Termination of Employment. In the event that the
-------------------------
employment of the Employee shall be terminated (otherwise than by
reason of death, disability or retirement), the Award may be exercised
by the Employee (to the extent that he or she shall have been entitled
to do so at the termination of his or her employment) at any time
within ninety (90) days after such termination, but not beyond the
original term thereof. So long as the Employee shall continue to be
an employee of the Company or of one or more of its Subsidiaries, the
Award shall not be affected by any change of duties or position.
Nothing in this Award Agreement shall confer upon the Employee any
right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or
any such Subsidiary to terminate his or her employment at any time.
Anything herein contained to the contrary notwithstanding, in the
event of any termination of the Employee's employment for cause, the
Award, to the extent not theretofore exercised, shall forthwith
terminate.
8. Death of Employee. If the Employee shall die while he
-----------------
or she shall be employed by the Company or one or more
<PAGE>
<PAGE>
of its Subsidiaries or within ninety (90) days after the termination
of his or her employment, the Award may be exercised in full by a
legatee or legatees of the Employee under his or her last will, or by
his or her personal representatives or distributees, at any time
within three hundred sixty five (365) days after his or her death, but
not beyond the original term of the Award.
9. Disability of Employee. If the employment of the
----------------------
Employee shall terminate on account of his or her having become
"disabled", as defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended, the Award may be exercised in full at the
termination of his or her employment on account of his or her becoming
disabled, at any time within three hundred sixty five (365) days after
the date on which his or her employment terminated, but not beyond the
original term of the Award.
10. Retirement of Employee. If the employment of the
----------------------
Employee shall terminate by reason of retirement entitling the
Employee to benefits under the provisions of any retirement plan of
the Company or a Subsidiary in which the Employee participates (or if
no such plan then exists, at or after age sixty-five (65)), the Award
may be exercised in full at any time within three hundred sixty five
(365) days after the date on which his
<PAGE>
<PAGE>
or her employment terminated, but not beyond the original term of the
Award.
11. Taxes.
-----
(a) The Company shall have the right to require an
Employee entitled to receive Shares pursuant to the exercise
of an Award under the Plan to pay the Company the amount of
any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate
for such Shares is delivered pursuant to the Award. The
Company may elect to deduct such taxes from any other
amounts payable then or any time thereafter in cash or
Shares or otherwise to the Employee.
(b) An Employee who is subject to Section 16(b) of the
Securities and Exchange Act of 1934 may satisfy his tax
liability with respect to the exercise of the Award by
having the Company withhold Shares otherwise issuable upon
exercise of the Award, if such Employee makes an irrevocable
election, by way of a written statement in a form acceptable
to the Committee, at least six (6) months before the
exercise of the Award or if the exercise of the option
occurs during any Window Period.
<PAGE>
<PAGE>
12. Changes in Capital Structure. In the event of changes
----------------------------
in all of the outstanding Shares by reason of stock dividends, stock
splits, recapitalizations, mergers, consolidation, combinations or
exchanges of Shares, separations, reorganization, liquidations, or
similar events, or in the event of extraordinary cash or non-cash
dividends being declared with respect to outstanding Shares or similar
transactions, the number and class of Shares subject to the Award
hereby granted and the option price thereof shall be correspondingly
equitably adjusted by the Committee as it shall decide in its sole
discretion.
13. Securities Law Compliance. The Award may not be
-------------------------
exercised and the Company shall not be required to issue any Shares
hereunder if such issuance would, in the judgement of the Board or the
Committee, constitute a violation of any state or federal law, or of
the rules or regulations of any governmental regulatory body, or any
securities exchange. The Company may, in its sole discretion, require
Employee to furnish the Company with appropriate representations and a
written investment agreement prior to the exercise of the Award and
the delivery of any Shares pursuant to the Award.
14. Incorporation of Provisions of the Plan. All of the
---------------------------------------
provisions of the Plan, pursuant to which this Award is granted, are
hereby incorporated by reference and made as part hereof as if
specifically set forth herein, and to the extent of
<PAGE>
<PAGE>
any conflict between this Award Agreement and the terms contained in
the aforesaid Plan, the Plan shall control. To the extent any
capitalized terms are not otherwise defined herein, they shall have
the meaning set forth in the Plan.
IN WITNESS WHEREOF, the Company has caused this Award
Agreement to be duly executed by its officers thereunto duly
authorized, and the Employee has hereunto set his or her hand, all as
of the day and year first above written.
BALLY ENTERTAINMENT
CORPORATION
By: /s/ Carol DePaul
--------------------------
its Secretary
/s/ Arthur M. Goldberg
-----------------------------
Employee
<PAGE>
EXHIBIT 99.I (CE)
-----------------
AGREEMENT REGARDING JOINT FILING OF SCHEDULE 13D
------------------------------------------------
This will confirm the agreement by and among all the
undersigned that the Schedule 13D filed on or about this date with
respect to the beneficial ownership by the undersigned of shares of
the common stock, par value $0.66-2/3 per share, of Bally
Entertainment Corporation, is being filed, and all further amendments
thereto will be filed, jointly on behalf of each of the entities named
below for all purposes specified in such Schedule 13D, as so amended.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Dated: January 6, 1995
/s/ Arthur M. Goldberg
----------------------------------------
Arthur M. Goldberg
NUGGET PARTNERS, L.P.
By: /s/ Arthur M. Goldberg
-------------------------------------
Arthur M. Goldberg
General Partner
NYFS04...:\30\20130\0001\2042\EXH1235Z.030
