EXHIBIT 10.1
VOTING PROXY AGREEMENT
THIS VOTING PROXY AGREEMENT (hereinafter this "Agreement"), made and
entered this 8th day of November, 2002, by and among WMS Industries Inc., a
Delaware corporation, (hereinafter the "Company"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(hereinafter "▇▇▇. ▇▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
individuals, as Proxy Holder (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Company is a publicly traded corporation with common
stock, par value $0.50 per share, traded on the New York Stock Exchange; and,
WHEREAS, the Company is licensed as a manufacturer or distributor of
gaming devices; and,
WHEREAS, as of the Effective Date (as hereinafter defined), ▇▇▇.
▇▇▇▇▇▇▇▇ owns, either beneficially or of record, the number of shares of the
Company's common stock, par value $0.50 per share, as set forth opposite ▇▇▇.
▇▇▇▇▇▇▇▇'▇ name on Exhibit A hereto, or as may be amended in subsequent filings
with the United States Securities and Exchange Commission ("SEC"); and,
WHEREAS, ▇▇▇. ▇▇▇▇▇▇▇▇ is a passive investor in the Company, has no
representation on the Board of Directors of the Company and has no involvement
in the management of the Company; and,
WHEREAS, ▇▇▇. ▇▇▇▇▇▇▇▇ has voluntarily decided to grant to the Proxy
Holder a voting proxy for all of the shares of common stock of the Company that
▇▇▇. ▇▇▇▇▇▇▇▇ owns beneficially or of record as set forth opposite ▇▇▇.
▇▇▇▇▇▇▇▇'▇ name on Exhibit A hereto, or as may be amended in subsequent filings
with the SEC; and,
WHEREAS, in order to assure that the passive investment position of
▇▇▇. ▇▇▇▇▇▇▇▇ relative to the Company will not change without prior notification
to the applicable Gaming Authorities (as hereinafter defined), ▇▇▇. ▇▇▇▇▇▇▇▇ is
amenable to entering this Agreement; and,
WHEREAS, the Company, the Proxy Holders and ▇▇▇. ▇▇▇▇▇▇▇▇ have the
ability to perform under this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Unless otherwise stated in this Agreement:
"Affiliate" shall have the meaning ascribed to that term by Section
15.482-3 of the Regulations of the Nevada Gaming Commission.
"Common Stock" means all voting equity securities of the Company
beneficially owned by ▇▇▇. ▇▇▇▇▇▇▇▇ individually or through her ownership and
control of any other Person.
"Effective Date" is the date first above written. It is the intention
of the parties that this Voting Proxy will include the voting of the shares at
the Company's Annual Meeting of Shareholders to be held on November 14, 2002.
"Gaming Authorities" means any gaming regulatory jurisdiction within
which the Company or its subsidiaries are licensed or otherwise authorized to do
business.
"Person" means a natural person, any form of business or social
organization and any other nongovernmental legal entity.
"Proxy Holder" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman of the Board of
Directors of the Company, or, in the event ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unable to
perform the duties and exercise the rights of Proxy Holder, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
member of the Board of Directors of the Company.
ARTICLE 2
CREATION AND TERMINATION OF VOTING PROXY
2.1 The Proxy Holder shall file a copy of this Agreement in the
registered office of the Company in Delaware.
2.2 ▇▇▇. ▇▇▇▇▇▇▇▇ shall perform such further acts and execute such
further documents and instruments as may reasonably be required to confer on the
Proxy Holder the power to carry out the provisions of this Agreement, including
the execution of new or additional proxies.
2.3 ▇▇▇. ▇▇▇▇▇▇▇▇ shall be entitled to terminate this Agreement
effective thirty (30) calendar days following service of written notice of such
termination on the Company, Proxy Holder and the applicable Gaming Authorities.
2.4 Except if, and to the extent, terminated pursuant to paragraph 2.3,
this Agreement shall remain effective as to any Common Stock, other than the
Common Stock previously in such ownership of ▇▇▇. ▇▇▇▇▇▇▇▇ that is sold or
otherwise disposed of in a transfer to a Person that is not an Affiliate of ▇▇▇.
▇▇▇▇▇▇▇▇.
2.5 Failure by the Company to comply with the notice requirement
described in paragraph 4.1 hereof shall be deemed an automatic termination of
this Agreement as to any subject matter for which such notice was not properly
given by the Company.
2.6 Unless sooner terminated as provided in paragraphs 2.3 through 2.5
hereof, this Agreement shall continue in force until ten (10) years from the
date hereof (hereinafter the "Voting Proxy Term"). Two (2) years before the
expiration of ten (10) years from the date hereof, the parties may agree to
extend this Agreement for another ten (10) years.
ARTICLE 3
POWERS, RIGHTS AND DUTIES OF PROXY HOLDER
3.1 As of the Effective Date of this Agreement, ▇▇▇. ▇▇▇▇▇▇▇▇, by this
Agreement, with respect to the Common Stock, does hereby constitute and appoint
the Proxy Holder, with full power of substitution, during and for the Voting
Proxy Term, as her true and lawful attorney-in-fact and proxy, for and in their
name, place and stead, to vote all shares of the Common Stock as the proxy of
▇▇▇. ▇▇▇▇▇▇▇▇, at every annual, special or adjourned meeting of the shareholders
of the Company, including the right to sign the Proxy Holder's name as ▇▇▇.
▇▇▇▇▇▇▇▇ to any consent, certificate or other document relating to
the Company that the law of the State of Delaware may permit or require on any
and all matters which may be presented to the shareholders of the Company.
Actions to be taken by Proxy Holder shall be determined by Proxy Holder in his
sole and absolute discretion. Without limiting the foregoing, Proxy Holder may
exercise all of the voting rights of ▇▇▇. ▇▇▇▇▇▇▇▇, including for example, the
right to vote or consent to amendment of the Certificate of Incorporation of
Company, sale of all corporate assets, mergers, consolidations, reductions of
capital and dissolutions, except that Proxy Holder shall not sell, assign or
otherwise dispose of the Common Stock. This Agreement shall continue and be
applicable with respect to any securities of the Company having any voting
rights issued by the Company to ▇▇▇. ▇▇▇▇▇▇▇▇ in substitution or exchange for,
or as a distribution on, the Common Stock.
3.2 Proxy Holder shall serve without compensation as Proxy Holder. The
Company will be responsible for the payment of all expenses and charges incurred
by Proxy Holder, including the expenses and charges of such agents and attorneys
as Proxy Holder may deem necessary and proper to employ in the performance of
his duties under this Agreement.
3.3 In voting the Common Stock, Proxy Holder shall use his best
judgment from time to time to the end that the affairs of the Company shall be
properly managed. Proxy Holder may cause himself to be elected as director of
the Company and Proxy Holder may act as an employee, officer or agent of the
Company and be reasonably compensated for his services in such capacity as fully
as though he were not a Proxy Holder.
3.4 Proxy Holder shall not be liable to the Company or ▇▇▇. ▇▇▇▇▇▇▇▇
for any act or omission of the Proxy Holder, or any agent of the Proxy Holder,
or be held to any personal liability whatsoever in tort, contract, or otherwise
in connection with the performance of the Proxy Holder's obligations pursuant to
this Agreement, except for liabilities arising from the Proxy Holder's bad
faith, willful misfeasance or reckless disregard of duty. The Proxy Holder shall
not be liable except for the performance of any duties and obligations as are
specifically set forth in this Agreement and no implied covenants or obligations
shall be read into the Agreement against the Proxy Holder. The Proxy Holder
shall not be liable with respect to any action taken or omitted to be taken by
the Proxy Holder in good faith. In addition to, and not in limitation of, the
foregoing, no successor Proxy Holder shall in any way be liable for the acts or
omissions of any Proxy Holder or agent of the Proxy Holder occurring prior to
the date on which he became a Proxy Holder.
3.5 Proxy Holder may consult with counsel, auditors or other experts,
and the advice or opinion of such counsel, auditors, or other experts shall be
full and complete personal protection to Proxy Holder in respect of any action
taken or suffered by the Proxy Holder in good faith and in reliance upon or in
accordance with such advice or opinion. In discharging his duties, the Proxy
Holder may rely upon financial statements of the Company represented to the
Proxy Holder to be correct by the Person having charge of the Company's books of
account, or stated in a written report by an independent certified public
accountant to present fairly the financial position of the Company. The Proxy
Holder may rely, and shall be personally protected in acting upon any
instrument, certificate, opinion, report, notice, order or other document of any
sort whatsoever delivered to him in connection with this Agreement reasonably
believed by him to be genuine.
3.6 Proxy Holder shall not resign or cease to act as Proxy Holder until
a successor Proxy Holder is appointed by the Company's Board of Directors. In
the event of the death or in the event that Proxy Holder is adjudicated an
incompetent, and a guardian or conservator is appointed for his person,
business, assets or estate, and such adjudication is not set aside or reversed
or stayed within sixty (60) days from the date of such adjudication, or, in the
event of the total physical or mental disability of Proxy Holder which persists
for a continuous period of six (6) months, the Board of Directors of the Company
shall select a successor Proxy Holder to serve until the termination of this
Agreement. The successor
Proxy Holder shall be a member of the Company's Board of Directors or a bank or
trust company licensed by the United States (hereinafter the "Institutional
Proxy Holder"), with capital in excess of $100,000,000.00.
ARTICLE 4
POWERS, RIGHTS AND DUTIES OF ▇▇▇. ▇▇▇▇▇▇▇▇
4.1 ▇▇▇. ▇▇▇▇▇▇▇▇ shall receive from the Company written notice of any
subject matter that will be presented for approval, consent or ratification to
the shareholders of the Company at least forty-five (45) calendar days prior to
the date on which the shareholders of the Company shall vote on, or consent, to
such subject matter.
4.2 The terms of this Agreement do not obligate any Person other than
▇▇▇. ▇▇▇▇▇▇▇▇, her Affiliates, the Company, and the Proxy Holder and will
terminate as to any shares of Common Stock of the Company transferred by ▇▇▇.
▇▇▇▇▇▇▇▇ in accordance with the provisions of paragraph 2.4 hereof.
4.3 ▇▇▇. ▇▇▇▇▇▇▇▇ shall submit to the Company a copy of any report,
form or other document filed by ▇▇▇. ▇▇▇▇▇▇▇▇ with the SEC, relative to the
Company contemporaneously with filing such report, form or document with the
SEC.
4.4 ▇▇▇. ▇▇▇▇▇▇▇▇ shall submit to the Company written notice within ten
(10) business days of the sale or other disposition of the Common Stock or any
other securities issued by the Company owned by ▇▇▇. ▇▇▇▇▇▇▇▇. The written
notice required by this paragraph 4.4 shall specify the type and number of
securities involved in a reported transaction, and the consideration provided
for the disposition of such.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ▇▇▇. ▇▇▇▇▇▇▇▇
▇▇▇. ▇▇▇▇▇▇▇▇ hereby represents and warrants to the Company and the
Proxy Holder that she is the record or beneficial owner of the shares of Common
Stock as set forth in Exhibit A, or as amended in subsequent filings with the
SEC, to this Agreement, free and clear of any proxy or voting restrictions other
than pursuant to this Agreement.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Irrevocable Proxy. Except as provided in paragraphs 2.3 through 2.6
and 4.2 hereof, the proxy created by this Agreement is irrevocable.
6.2 Titles and Subtitles. Titles of paragraphs and subparagraphs are
placed herein for convenient reference only and shall not to any extent have the
effect of modifying, amending or changing the express terms and provisions of
this Agreement.
6.3 Words and Gender or Number. As used herein, unless the context
clearly indicates the contrary, the singular number shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
6.4 Execution in Counterpart. This Agreement may be executed in any
number of counterparts, each of which shall be taken to be an original.
6.5 Severability. In the event any parts of this Agreement are found to
be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
6.6 Effective Dates. This Agreement shall be effective only upon the
execution by all of the proposed parties.
6.7 Waiver. No waiver of any provisions of this Agreement shall be
valid unless in writing and signed by the person or party against whom charged.
6.8 Applicable Law. Except as provided in paragraph 6.9 hereof, this
Agreement shall be subject to and governed by the laws of the State of Delaware.
6.9 Regulatory Jurisdiction. This Agreement is subject to the
jurisdiction of the applicable Gaming Authorities.
6.10 Entire Agreement. This Agreement contains the entire agreement
between the parties.
6.11 Certain Judicial Remedies. The parties to this Agreement
acknowledge and agree that irreparable damage would result in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
6.12 Notices. Every and all notice required hereunder shall be given by
personal service, telecopy transmittal or by overnight courier, to the parties
at the following addresses listed in this Agreement; provided, however, any
party may change its address by written notice to the other parties.
As to the Company: WMS Industries Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to the Proxy Holder: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to ▇▇▇. ▇▇▇▇▇▇▇▇: ▇▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.13 Assignment. This Agreement shall not be assigned by operation of
law or otherwise.
IN WITNESS WHEREOF, the parties have entered into this Agreement
effective this 8th day of November, 2002.
WMS INDUSTRIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Exhibit A
SCHEDULE OF AFFECTED COMMON STOCK
Name of Stockholder Number of Shares
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 3,085,700