HILTON HOTELS CORPORATION
(a Delaware corporation)
24,000,000 shares of Common Stock
PURCHASE AGREEMENT
April __, 1998
[Underwriter to come]
Ladies and Gentlemen:
Hilton Hotels Corporation, a Delaware corporation (the "Company"), and the
Charitable Remainder Unitrust u/d/t May 8, 1989 (the "Selling Stockholder")
confirms their agreement with [ ] (the
"Underwriter"), with respect to the sale by the Selling Stockholder and the
purchase by the Underwriter, of 24,000,000 shares (the "Shares") of common
stock, par value $2.50 per share, of the Company (the "Common Stock").
The Company and the Selling Stockholder each understand that the
Underwriter proposes to make a public offering of the Shares as soon as the
Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-49179) for the
registration of the Shares under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such pre-effective and
post-effective amendments thereto as may be required prior to the execution of
this Agreement. Such registration statement, as so amended, has been declared
effective by the Commission. Such registration statement, as so amended, is
referred to herein as the "Registration Statement;" and the prospectus
constituting a part of the Registration Statement, and the final prospectus
supplement relating to the offering of the Shares, in the form first furnished
to the Underwriter by the Company and the Selling Stockholder for use in
connection with the offering of the Shares, are collectively referred to herein
as the "Prospectus;" PROVIDED, that if any revised prospectus shall be provided
to the Underwriter by the Company for use in connection with the offering of the
Shares which differs from the prospectus on file (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriter for
such use. All references to the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of
this Agreement. If the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus supplement and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriter by the Company in reliance upon Rule 434 of the
1933 Act Regulations (the "Rule 434 Information"), and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
A "preliminary prospectus" shall be deemed to refer to any preliminary
prospectus supplement, accompanying the prospectus filed as part of the
Registration Statement, that omitted the Rule 434 Information or other
information with respect to the Securities to be included upon pricing in a form
of prospectus supplement filed with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations, that was used after such effectiveness and prior to
the execution and delivery of this Agreement. For purposes of this Agreement,
all references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "described," "disclosed,"
"referred to" or "stated" in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement,
any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to the Underwriter as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agrees with the Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act, no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
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At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time,
the Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement or
Prospectus.
The prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus and
the Prospectus delivered to the Underwriter for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T promulgated by the Commission ("Regulation S-T").
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the date of the
Prospectus and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary (a) in the case of the Registration
Statement, to make the statements therein not misleading or (b) in the case
of the Prospectus, in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
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(iv) FINANCIAL STATEMENTS. The consolidated financial
statements, together with related schedules and notes, set forth or
incorporated by reference in the Prospectus and the Registration Statement,
comply as to form in all material respects with the requirements of the
1933 Act and fairly present the consolidated financial position of each of
the Company and its consolidated subsidiaries at the respective dates
indicated and the results of their respective operations and their
respective cash flows for the respective periods indicated, in accordance
with generally accepted accounting principles ("GAAP") consistently applied
throughout such periods (except as may be indicated in the notes thereto).
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Subsequent to the
respective dates as of which information is presented in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, which are material to the Company and its subsidiaries, taken
as a whole, nor entered into any transaction not in the ordinary course of
business and there has not been, singly or in the aggregate, any material
adverse change or any development which would involve a material adverse
change, in the business, results of operations, condition (financial or
otherwise), or prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Change").
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has the corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the operation, ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect (as hereinafter defined).
(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the operation, ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any
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Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the documents incorporated
by reference and forming a part of the Registration Statement and
Prospectus (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee or director benefit plans referred to
therein or pursuant to the exercise of convertible securities or options
referred to documents incorporated by reference and forming a part of the
Registration Statement and Prospectus or pursuant to the exercise of up to
600,000 options granted to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in connection with his
Consulting and Employment Agreement). The shares of issued and outstanding
capital stock of the Company (including, without limitation, the Shares)
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company (including, without limitation, the Shares) was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) DESCRIPTION OF THE COMMON STOCK. The Common Stock conforms
in all material respects to the statements relating thereto contained in
the documents incorporated by reference and forming a part of the
Registration Statement and Prospectus.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. The execution and
delivery of this Agreement by the Company, the sale of the Shares, the
performance of this Agreement, and the consummation of the transactions
contemplated by this Agreement, will not (1) conflict with or result in a
breach or violation of any of the respective charters or bylaws of the
Company or any of the Subsidiaries, (2) constitute a default or cause an
acceleration of any obligation under or result in the imposition or
creation of (or the obligation to create or impose) any security interest,
mortgage, pledge, claim, lien, encumbrance or adverse interest of any
nature (each, a "Lien") with respect to, any obligation, bond, agreement,
note, debenture, or other evidence of indebtedness, or any indenture,
mortgage, deed of trust or other agreement, lease or instrument to which
the Company or any of the Subsidiaries is a party or by which it or any of
them is bound, or to which any properties of the Company or any of the
Subsidiaries is or may be subject, or (3) contravene any order of any court
or governmental agency, body or official having jurisdiction over the
Company or any of its subsidiaries or any of their properties, or violate
or conflict with any statute, rule or regulation or administrative
regulation or decree or court decree applicable to the Company or any of
the Subsidiaries, or any of their respective assets or properties except,
in the case of clauses (2) and (3) above, for such conflicts or violations
which would not, singly or in the aggregate, have a material adverse effect
on the business, results of operations, condition (financial or otherwise)
or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
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(xii) ABSENCE OF PROCEEDINGS. There is no action, suit, or
proceeding before or by any court or governmental agency or body, domestic
or foreign, pending against or affecting the Company or any of its
subsidiaries, or any of their respective assets or properties, which is
required to be disclosed in the Registration Statement or the Prospectus
and is not so disclosed, or which have, or which would result in, singly or
in the aggregate, a Material Adverse Effect, or which could reasonably be
expected to materially and adversely affect the Company's performance of
its obligations pursuant to this Agreement or the transactions contemplated
hereby, and to the best of the Company's knowledge, no such action, suit,
or proceeding is contemplated or threatened.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, other than those which would not, singly or in the
aggregate, have a Material Adverse Effect, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No authorization, approval
or consent or order of, or filing with, any court or governmental body,
agency or official is necessary in connection with the transactions
contemplated by this Agreement including the Nevada Gaming Commission (the
"NGC"), the Nevada State Gaming Control Board ("NGCB"), the ▇▇▇▇▇ County
Liquor and Gaming Licensing Board ("CCLB"), the City of Reno ("Reno"), the
New Jersey Casino Control Commission (the "NJC"), the Mississippi Gaming
Commission (the "MGC"), the Mississippi State Tax Commission (the "MTC"),
the Louisiana Gaming Control Board ("LGCB"), the Missouri Gaming Commission
(the "MSGC") and the Ontario Casino Corporation ("OCC") (the NGC, NGCB,
CCLB, Reno, NJC, MGC, MTC, LGCB, MSGC and OCC are hereinafter collectively
referred to as the "Gaming Authorities"), except (i) such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") or have been obtained and made under the 1933 Act or state
securities or Blue Sky laws or regulations, (ii) such as may have been
obtained under the Nevada Gaming Control Act, the New Jersey Casino Control
Act, the Mississippi Gaming Control Act, the Missouri Gaming
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Law, the Louisiana Riverboat Economic Development and Gaming Control Act,
the Mississippi Gaming Law and the respective regulations promulgated
thereunder and the Louisiana Riverboat Economic Development and Gaming
Control Act (collectively, the "Gaming Laws") and (iii) for periodic
information filings made by the Company and its subsidiaries as required by
the Gaming Laws and the Company's Order of Registration issued by the NGCB.
(xvi) POSSESSION OF LICENSES AND PERMITS. (i) Each of the Company
and its subsidiaries and each of the persons listed under the caption
"Summary Compensation Table" in the Company's Proxy Statement for the 1998
Annual Meeting of stockholders (the "Management") has all certificates,
consents, exemptions, orders, permits, licenses, authorizations, or other
approvals or rights (each, an "Authorization") of and from, and has made
all declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts
and other tribunals, including, without limitation, all such Authorizations
with respect to engaging in gaming operations in the States of Nevada,
Louisiana, New Jersey, Mississippi, Missouri or Ontario, Canada, if such
person is required to be licensed in such jurisdictions, necessary or
required to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except as
would not have, singly or in the aggregate, a Material Adverse Effect, (ii)
all such Authorizations are valid and in full force and effect, except as
would not have, singly or in the aggregate, a Material Adverse Effect,
(iii) the Company and its subsidiaries and each of the Management are in
compliance in all material respects with the terms and conditions of all
such Authorizations and with the rules and regulations of the regulatory
authorities and governing bodies having jurisdiction with respect thereto,
except as would not have, singly or in the aggregate, a Material Adverse
Effect, and (iv) except as disclosed in or disclosed in the documents
incorporated by reference and forming a part of the Registration Statement,
neither the Company nor any of its subsidiaries nor any of the Management
has received any notice of proceedings relating to the revocation or
modification of any such Authorization and no such Authorization contains
any restrictions that are materially burdensome to any of them. Neither
the Company nor any of its subsidiaries has any reason to believe that any
Gaming Authorities are considering modifying, limiting, conditioning,
suspending, revoking or not renewing any such Authorizations of the
Company, any of its subsidiaries or any of the Management or that either
the Gaming Authorities or any other governmental agencies are investigating
the Company or any of its subsidiaries or related parties (other than
normal overseeing reviews of the Gaming Authorities incident to the gaming,
riverboat or casino activities, as the case may be, of the Company and its
subsidiaries). Neither the Company nor any of its subsidiaries has any
reason to believe that there exists a reasonable basis for the Gaming
Authorities to deny the renewal of the current casino and gaming licenses
held by the Company or any of its subsidiaries.
(xvii) TITLE TO PROPERTY. Except as would not result in a Material
Adverse Effect, (i) the Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions
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or encumbrances of any kind except such as (a) are described or referred to
in the Prospectus or (b) do not affect the value of such property and do
not interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; (ii) all of the leases and
subleases of the Company and its subsidiaries, and under which the Company
or any of its subsidiaries holds properties described in the Prospectus,
are in full force and effect, and (iii) neither the Company nor any
subsidiary has any notice of any claim of any sort that has been asserted
by anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xviii) INVESTMENT COMPANY ACT. The Company is not an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xix) ENVIRONMENTAL LAWS. Except as described in or in the
documents incorporated by reference and forming a part of the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xx) GOVERNMENTAL ACTION. No action has been taken and no
statute, rule, regulation or order has been enacted, adopted or issued by
any governmental body, agency or official which prevents the sale of the
Shares, suspends the effectiveness of the Registration Statement, prevents
or suspends the use of any preliminary prospectus or suspends the sale of
the Shares in any jurisdiction referred to in Section 3(f) hereof; no
injunction, restraining
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order, or order of any nature by any Federal or state court has been issued
with respect to the Company or any of its subsidiaries which would prevent
or suspend the sale of the Shares, the effectiveness of the Registration
Statement, or the use of any preliminary prospectus or Prospectus in any
jurisdiction referred to in Section 3(f) hereof; no action, suit or
proceeding before any court or arbitrator or any governmental body, agency
or official, domestic or foreign, is pending against or, to the best of the
Company's knowledge threatened against, the Company or any of its
subsidiaries which, if adversely determined, could interfere with or
adversely affect or in any manner draw into question the validity of this
Agreement and the Company has complied with every request of the Commission
or any securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) in all material respects.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriter or to counsel
for the Underwriter shall be deemed a representation and warranty by the Company
to the Underwriter as to the matters covered thereby.
(c) REPRESENTATIONS AND WARRANTIES BY THE SELLING STOCKHOLDER. The
Selling Stockholder, solely in such Selling Stockholder's capacity as a Selling
Stockholder, represents and warrants to the Underwriter and the Company as of
the date hereof, and as of the Closing Time and agrees with the Underwriter, as
follows:
(i) GOOD AND MARKETABLE TITLE. The Selling Stockholder has good
and valid title to the Shares, free and clear of all liens, encumbrances,
security interests and claims whatsoever; and upon sale and delivery of,
and payment for, such Shares, as provided herein, at the Closing Time, such
Selling Stockholder will convey to the Underwriter good and valid title to
such Shares, free and clear of all liens, encumbrances, security interests
and claims whatsoever. At the Closing Time, the certificates representing
the Shares will not contain any transfer restriction legends. Upon sale
and delivery of, and payment for, such Shares, as provided herein, and
PROVIDED that the Underwriter does not have notice of any "adverse claim"
(within the meaning of Article 8 of the Uniform Commercial Code of the
State of New York), the Underwriter will be a "protected purchaser" (within
the meaning of Article 8 of the Uniform Commercial Code of the State of New
York) with respect to the Shares and will acquire the Shares free of any
"adverse claim" (within the meaning of Article 8 of the Uniform Commercial
Code of the State of New York).
(ii) AUTHORIZATION OF AGREEMENTS. The Selling Stockholder has
the full right, power and authority to enter into this Agreement and to
sell, transfer and deliver the Shares. The execution and delivery of this
Agreement and the sale and delivery of the Shares and the consummation of
the transactions contemplated herein and compliance by the Selling
Stockholder with its obligations hereunder have been duly authorized by the
Selling Stockholder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Shares pursuant to
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any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder may be bound, or
to which any of the property or assets of the Selling Stockholder is
subject, nor will such action result in any violation of the provisions of
the organizational instrument of the Selling Stockholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Selling Stockholder or
any of its properties, except for such breaches, defaults, taxes, liens,
charges, encumbrances or violations that would not have a material adverse
effect on the ability of the Selling Stockholder to consummate the
transactions contemplated by this Agreement, or its ability to sell,
transfer and deliver the Shares to be sold by the Selling Stockholder
hereunder.
(iii) ACCURATE DISCLOSURE. The Selling Stockholder has reviewed
the Registration Statement and the Prospectus, and (a) is not motivated to
sell the Shares by any information with respect to the Shares, the Company
or its subsidiaries not contained therein and (b) such part of the
Registration Statement and the Prospectus comprising information under the
caption "Selling Stockholder" which specifically relates to the Selling
Stockholder will not, at the date the Registration Statement becomes
effective, contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and, at the date of the Prospectus, and
at the Closing Time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(iv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required in connection with the sale of the Shares by the
Selling Stockholder under this Agreement or the consummation of the
transactions contemplated by this Agreement, except (x) such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and (y) those that if not obtained
would not reasonably be expected to have a material adverse effect on the
ability of the Selling Stockholder to consummate the transactions
contemplated by this Agreement, or its ability to sell, transfer or deliver
the Shares.
(v) ABSENCE OF MANIPULATION. The Selling Stockholder has not
taken and will not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or
result under the 1934 Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares.
(vi) NO VIOLATION OF REGULATION M. The Selling Stockholder has
not taken any action that would violate Rule 102 of Regulation M of the
1934 Act.
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(vii) FORM W-9. In order to document the Underwriter's compliance
with the reporting and withholdings provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to the Underwriter prior
to or at the Closing Time a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to the Underwriter and the Underwriter agrees to
purchase from the Selling Stockholder, at the price of $___ per share, the
Shares.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, or at such other place as shall
be agreed upon by the Underwriter, the Selling Stockholder and the Company, at
7:00 A.M. (California time) on the third business day after the date hereof, or
such other time not later than ten business days after such date as shall be
agreed upon by the Underwriter, the Selling Stockholder and the Company (such
time and date of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholder, against delivery to the Underwriter of one or more certificates
representing the Shares.
(c) DENOMINATIONS; REGISTRATION. Certificates for the Shares shall be in
such denominations and registered in such names as the Underwriter may request
in writing at least two full business days before the Closing Time. The
certificates for the Shares will be made available for examination and packaging
by the Underwriter in The City of New York not later than 10:00 A.M. (New York
time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 434,
as applicable, and will notify the Underwriter immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
11
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriter notice of
its intention to file or prepare any amendment to the Registration Statement,
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriter with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriter, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for the Underwriter. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter reasonably requested, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, the number of
copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Shares as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Shares, any event shall occur or condition shall exist as a result of
which
12
it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriter such number of copies of such amendment
or supplement as the Underwriter may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Shares for offering and sale
under the applicable securities laws of such states and other jurisdictions as
the Underwriter may designate; PROVIDED, HOWEVER, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will also supply the Underwriter with such information as is necessary
for the determination of the legality of the Shares for investment under the
laws of such jurisdictions as the Underwriter may request.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(i) The Company will not, without the prior written consent of the
Underwriter, sell, issue or otherwise transfer any shares of Common Stock for a
period of 90 days from the date of this Agreement, other than (a) upon the
exercise of options or other rights (including the 5% Convertible Notes due 2006
of the Company) to purchase such shares existing on the date of this Agreement,
(b) pursuant to employee and director benefit plans in existence on the date of
this Agreement or (c) pursuant to bonafide offers to acquire or otherwise engage
in a business combination with third parties.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
13
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriter of this Agreement and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Shares, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriter, (iv) the reasonable fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Shares under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriter of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto and (vii) the preparation, printing and delivery to the
Underwriter of copies of the Blue Sky Survey and any supplement thereto.
Notwithstanding the foregoing, the provisions of Section 4 of the Registration
Rights Agreement, dated as of April 1, 1998 (the "Registration Rights
Agreement"), by and among the Company and the Selling Stockholders shall remain
in full force and effect.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Selling Stockholder shall reimburse the Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder are subject to the accuracy of the respective
representations and warranties of the Company and the Selling Stockholder
contained in Section 1 hereof or in certificates of any officer of the Company,
any subsidiary of the Company or the Selling Stockholder delivered pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholder of their respective covenants and other obligations hereunder, and
to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
A prospectus shall have been filed with the Commission in accordance with Rule
424(b) or, if the Company has elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b).
(b) OPINIONS OF COUNSEL FOR COMPANY. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Corporate Secretary for the Company,[▇▇▇▇▇▇ ▇▇▇▇▇▇],
special Louisiana gaming counsel for the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special
Nevada gaming counsel for the Company and ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
New Jersey gaming counsel for the Company, ▇▇▇▇▇▇▇ & Gage, special Missouri
gaming counsel for the Company, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Selling Stockholder, each in form and substance satisfactory to
14
counsel for the Underwriter, to the effect set forth in Exhibits ▇-▇, ▇-▇, ▇-▇,
▇-▇, ▇-▇, A-6 and A-7 hereto, respectively, and to such further effect as
counsel for the Underwriter may reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITER. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter,
satisfactory to the Underwriter. In giving such opinion, such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) OFFICERS' CERTIFICATE. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriter shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such Material Adverse Change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
best knowledge of the Company, are contemplated by the Commission. The
Underwriter shall have received a certificate of the Selling Stockholder, dated
as of the Closing Time, to the effect that the representations and warranties in
Section 1(c) hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time and the Selling Stockholder
has complied with all agreements and satisfied all conditions to be performed or
satisfied on its part at or prior to the Closing Time.
(e) ACCOUNTANT'S COMFORT LETTER. At the Closing Time, the Underwriter
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form
and substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriter with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the
Underwriter shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the sale of the Shares
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Selling
Stockholder in connection with
15
the sale of the Shares as herein contemplated shall be satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(g) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company and the
Selling Stockholder at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
(h) LOCK-UP AGREEMENTS. At the date of this Agreement, the Underwriter
shall have received an agreement substantially in the form of Exhibit B hereto
signed by each of the executive officers and directors of the Company and by the
Selling Stockholder.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITER. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever
16
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not
paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission that is (x) made
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 434 Information deemed to be a part
thereof, if applicable, or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or (y) made in any preliminary prospectus if a
copy of the Prospectus (as amended or supplemented, if the Company shall have
furnished the Underwriter with such amendments or supplements thereto on a
timely basis) was not delivered by or on behalf of the Underwriter to the person
asserting any such loss, liability, claim, damage or expense, if required by law
to have been so delivered by the Underwriter, at or prior to the written
confirmation of the sale of the Securities, and it shall be finally determined
by a court of competent jurisdiction, in a judgment not subject to appeal or
review, that the Prospectus (as so amended or supplemented) would have corrected
such untrue statement or omission. Notwithstanding the provisions of this
Section 6, the provisions of Section 5 of the Registration Rights Agreement
shall remain in full force and effect.
(b) INDEMNIFICATION BY THE SELLING STOCKHOLDER. The Selling
Stockholder agrees to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), including any Rule
430A Information and any Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon, and in conformity with, written information
relating specifically to such Selling Stockholder furnished to the Company by
or on behalf of the Selling Stockholder expressly for use in the portion of
the Registration Statement (or any amendment thereto) captioned "Selling
Stockholder;" PROVIDED, HOWEVER, that (x) the liability of the Selling
Stockholder under this Section 6(b), together with any liability to the
Underwriter of the Selling Stockholder arising from or based upon a breach by
the Selling Stockholder of its representations in this Agreement, shall be
limited to an amount equal to the proceeds of the sale of Shares by the
Selling Stockholder (net of underwriting discounts and commissions but before
deducting expenses) received by the Selling Stockholder in connection with
the registration and sale of the Shares) and (y) the foregoing indemnity
provided under Section 6(b) with respect to any preliminary prospectus shall
not inure to the benefit of the Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
liability, claim or damage purchased such Shares if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented by the Company if the Company shall have furnished any
amendments or supplements thereto) and a copy of the Prospectus (as so
amended or supplemented),
17
which at such time had been provided to the Underwriter for its use, shall not
have been furnished to such person at or prior to the written confirmation of
sale of such Shares to such person.
(c) INDEMNIFICATION OF SELLING STOCKHOLDER, COMPANY, DIRECTORS AND
OFFICERS. The Underwriter agrees to indemnify and hold harmless the Selling
Stockholder, the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 434 Information, if applicable, or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(d) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) and
6(b) above, counsel to the indemnified parties shall be selected by Underwriter,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the
18
nature contemplated by Section 6(a) (ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriter on the
other hand from the offering of the Shares pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder on the one hand and of the Underwriter on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling Stockholder
on the one hand and the Underwriter on the other hand in connection with the
offering of the Shares pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Shares pursuant to this Agreement (before deducting expenses) received by the
Selling Stockholder and the total underwriting discount received by the
Underwriter, bear to the purchase price of the Shares as set forth on such
cover.
The relative fault of the Company and Selling Stockholder on the one hand
and the Underwriter on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and Selling Stockholder or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
19
Notwithstanding the provisions of this Section 7, the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of the Selling Stockholder, the officers of the
Company or any of its subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Underwriter or controlling person, or by or on behalf of the
Company or the Selling Stockholder, and shall survive delivery of the Shares to
the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable to market the Shares or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental
20
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the Underwriter at [insert address], New York,
New York [zip], attention of [insert name], with a copy to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; notices to the Company shall be
directed to it at Hilton Hotels Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the General Counsel, with a copy to ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and notices to the Selling Stockholder shall be
directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
SECTION 11. PARTIES. This Agreement shall each inure to the benefit
of and be binding upon the Underwriter, the Selling Stockholder and the
Company and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriter, the Selling Stockholder and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter, the Selling Stockholder and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of any Shares
from the Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter, the Selling Stockholder and the Company in accordance with its
terms.
Very truly yours,
HILTON HOTELS CORPORATION
By
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President and
General Counsel
CHARITABLE REMAINDER
UNITRUST, u/t/d MAY 8, 1989
By
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
[UNDERWRITER]
By -----------------------------
Authorized Signatory
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
(1) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(2) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(3) The Common Stock conforms in all material respects to the descriptions
thereof incorporated by reference into the Registration Statement.
(4) The Registration Statement has been declared effective under the 1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(5) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, in each case as of their respective effective or issue dates
(other than the financial statements and notes thereto, schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(6) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any federal, New York or California
court or governmental authority or agency is legally required for the execution
and delivery of the Purchase Agreement or in connection with the offering or
sale of the Shares under the Purchase Agreement, other than those which have
been obtained or those under the 1933 Act, the 1933 Act Regulations, which have
been obtained, or as may be required under state securities or blue sky laws.
(7) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
A-1-1
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any posteffective amendment thereto (except for
financial statements and notes thereto and schedules and other financial data
included therein or omitted therefrom, as to which we make no statement), at the
time the Registration Statement or any posteffective amendment thereto became
effective or at the date of the Purchase Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Such opinion may be limited to the federal laws of the United States, the
internal laws of the States of New York and California, and the General
Corporation Law of the State of Delaware.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership, operation or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
(3) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership, operation or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing would
not result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and is validly issued,
fully paid and non-assessable and, to the best of my knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such Subsidiary.
(4) The authorized issued and outstanding capital stock of the Company
is as set forth in the Company's annual report on Form 10-K for the year
ended December 31, 1997 (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee or director benefit plans referred to in
the Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The shares of issued and outstanding capital
stock of the (including the "Share") Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(5) To the best of my knowledge, no default exists and no event has
occurred that with notice, lapse of time, or both, would constitute a default in
the due performance and observance of any term, covenant or condition of any
agreement to which the Company or the Subsidiaries are a party or by which any
of them is bound, which default is or would result in a Material Adverse Effect.
A-2-1
(6) The execution, delivery and performance of the Purchase Agreement and
the consummation of the transactions contemplated by the Purchase Agreement and
compliance by the Company with its obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, known to me, to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the assets, properties or operations of the Company or any of its
Subsidiaries is subject, except for such conflicts, breaches, defaults, events
or liens, charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any of its Subsidiaries or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to me, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of their assets,
properties or operations.
(7) To the best of my knowledge and except as disclosed in the Prospectus,
there is not pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of its subsidiaries thereof is a party
or to which the assets, properties or operations of the Company or any of its
subsidiaries thereof is subject, before or by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to materially and
adversely affect the assets, properties or operations of the Company and its
subsidiaries taken as a whole or the consummation of the transactions
contemplated under the Purchase Agreement or the performance by the Company of
its obligations thereunder.
(8) All descriptions in the Registration Statement and the Prospectus of
statutes, legal and governmental proceedings and contracts and other documents
are accurate in all material respects and fairly present the information
required to be shown. To the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(9) To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
(10) The documents incorporated by reference in the Prospectus (other than
the financial statements and notes thereto, schedules and other financial data
included in, incorporated by reference in or omitted therefrom, as to which I
express no opinion), when they became effective or were filed
A-2-2
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder.
(11) To the best of my knowledge, other than the Selling Stockholder no
holder of any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company, on the Registration
Statement.
(12) Each of the Company and the Subsidiaries has such Authorizations from
all regulatory or governmental officials, bodies and tribunals as are necessary
to own, lease and operate its respective properties and to conduct its business
in the manner described in the Prospectus, except where the failure to obtain
such Authorizations would not have, singly or in the aggregate, a Material
Adverse Effect.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any post-effective amendment thereto (except for
financial statements and notes thereto, schedules and other financial data
included therein or omitted therefrom, as to which I make no statement), at the
time the Registration Statement or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with the
Commission) became effective or at the date of the Purchase Agreement, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto (except
for financial statements and schedules and other financial data included therein
or omitted therefrom, as to which I make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
Such opinion shall be limited to the federal laws of the United States and
the internal laws of the State of California.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇
1. The statements in the Form 10-K under the caption "Louisiana
Gaming Laws," and the statements regarding the State of Louisiana and the
Louisiana Gaming Control Board under the caption "Regulation and Licensing"
are accurate in all material respects (except for financial data included
therein or omitted therefrom, as to which counsel express no opinion); and we
do not know of any legal or governmental proceedings in the State of
Louisiana where the Company conducts, or proposes to conduct, gaming
operations required to be described in the Form 10-K which are not described
as required; and
2. No facts have come to our attention that would lead us to believe
that the statements referred to in paragraph 1 above contained, on the date of
the Supplement, or contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make such
statements, in light of the circumstances under which they are made, not
misleading.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
1. The statements in the Form 10-K under the "Additional
Information - Regulation and Licensing--Nevada Gaming Laws" heading (except
for financial data included therein or omitted therefrom, as to which we
express no opinion), have been reviewed by us and insofar as they constitute
a summary of the statutes, laws and applicable regulations of the State of
Nevada regarding gaming, they are accurate and correct in all material
respects.
2. Without assuming any responsibility for the accuracy, completeness
or fairness of the information or statements contained in the Form 10-K under
the "Additional Information--Regulation and Licensing--Nevada Gaming Laws"
heading, at the time of the filing thereof and on the date of our opinion
herein, such statements (except for financial data included therein or omitted
therefrom, as to which we express no opinion) have been reviewed by us and
insofar as they constitute a summary of the statutes, laws and applicable
regulations of the State of Nevada regarding the casino industry and gaming,
they contained and contain no untrue statements of a material fact or omitted or
omit to state any material fact required to be stated therein or necessary to
make such statements, in light of the circumstances under which they were or are
made, not misleading.
3. Insofar as the following relate to the statutes, laws and
applicable regulations of the State of Nevada regarding gaming, no
authorization, approval, consent or license issued by any Nevada Gaming
Authority or any other Nevada governmental body, agency or official is
necessary in connection with the issuance of the Securities and the due
authorization, execution, delivery and performance by the Company of the
Purchase Agreement, except such as have been obtained and are in full force
and effect, and except such as may be required (and as to which counsel need
express no opinion) under Nevada state securities laws.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
1. The statements in the Form 10-K under the caption "New Jersey
Gaming Laws" found under the heading "Regulation and Licensing," insofar as such
statements as of the time such statements were made, constitute a summary of New
Jersey State Statutes, Laws, Regulations, Legal and Governmental Proceedings of
the State of New Jersey regarding the casino industry and gaming have been
reviewed by us and are accurate in all material respects (except for financial
data included therein or omitted therefrom, as to which we express no opinion);
and we do not know of any legal or governmental proceedings in the State of New
Jersey where the Company conducts, or proposes to conduct, gaming operations
required to be described in the Prospectus which are not described as required.
2. Without assuming any responsibility for the accuracy, completeness
or fairness of the information or statements contained in the Form 10-K under
the caption "New Jersey Gaming Laws" found under the heading "Regulation and
Licensing," at the time of the filing thereof and on the date of our opinion
herein, such statements (except for financial data included thereon or omitted
therefrom, as to which we express no opinion) have been reviewed by us and
insofar as they constitute a summary of the statutes, laws and applicable
regulations of the State of New Jersey regarding the casino industry and gaming,
they contained and contain no untrue statement of a material fact or omitted or
omit to state any material fact required to be stated therein or necessary to
make such statements, in light of the circumstances under which they were or are
made, not misleading.
3. Insofar as the following relate to the statutes, laws and
applicable regulations of the State of New Jersey regarding the casino
industry and gaming, no authorization, approval, consent or license issued by
any New Jersey Gaming Authority or any other New Jersey governmental body,
agency or official is necessary in connection with the sale of the Shares and
the due authorization, execution, delivery and performance by the Company of
the Purchase Agreement, except such as have been obtained and are in full
force in effect, and except such as may be required under New Jersey state
non-gaming-related securities laws.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇▇ & GAGE
1. The statements in the Form 10-K under the "Additional
Information - Regulation and Licensing--Missouri Gaming Laws" heading (except
for financial data included therein or omitted therefrom, as to which we
express no opinion), have been reviewed by us and insofar as they constitute
a summary of the statutes, laws and applicable regulations of the State of
Missouri regarding the casino industry and gaming, they are accurate and
correct in all material respects.
2. Without assuming any responsibility for the accuracy, completeness
or fairness of the information or statements contained in the Form 10-K under
the "Additional Information--Regulation and Licensing--Missouri Gaming Laws"
heading, at the time of the filing thereof and on the date of our opinion
herein, such statements (except for financial data included therein or omitted
therefrom, as to which we express no opinion) have been reviewed by us and
insofar as they constitute a summary of the statutes, laws and applicable
regulations of the State of Missouri regarding the casino industry and gaming,
they contained and contain no untrue statements of a material fact or omitted or
omit to state any material fact required to be stated therein or necessary to
make such statements, in light of the circumstances under which they were or are
made, not misleading.
3. Insofar as the following relate to the statutes, laws and
applicable regulations of the State of Missouri regarding the casino industry
and gaming, no authorization, approval, consent or license issued by any
Missouri Gaming Authority or any other Missouri governmental body, agency or
official is necessary in connection with the issuance of the Securities and the
due authorization, execution, delivery and performance by the Company of the
Purchase Agreement, except such as have been obtained and are in full force and
effect, and except such as may be required under Missouri state securities laws.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF COUNSEL
FOR THE SELLING STOCKHOLDER
(i) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than the
filing of the Registration Statement, the issuance of the order of the
Commission declaring the Registration Statement effective, and such
authorizations, approvals or consents as may be necessary under state
securities and "blue sky" laws, and such as have been obtained or may be
required under the laws and regulations of jurisdictions outside the United
States in which the Shares are offered, or by the bylaws and rules of the
NASD in connection with the purchase and distribution by the Underwriter of
the Shares, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Stockholder for the performance by
the Selling Stockholder of its obligations under the Purchase Agreement or
in connection with the offer, sale or delivery of the Shares.
(ii) The execution, delivery and performance of the Purchase
Agreement and the sale and delivery of the Shares and the consummation of
the transactions contemplated in the Purchase Agreement, and in the
Registration Statement and compliance by the Selling Stockholder with its
obligations under the Purchase Agreement have been duly authorized by the
Selling Stockholder, and to our knowledge, do not and will not, whether
with or without giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Shares or any
property or assets of the Selling Stockholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other instrument or agreement to which the Selling
Stockholder is a party or by which it may be bound, or to which any of the
property or assets of the Selling Stockholder may be subject, nor will such
action result in any violation of the provisions of the organizational
documents of the Selling Stockholder, if applicable, or any law,
administrative regulation, or to our knowledge, any judgment or order of
any governmental agency or body or any administrative or court decree
having jurisdiction over the Selling Stockholder or any of its properties.
(iii) The Purchase Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Stockholder.
A-7-1
(iv) To the best of our knowledge such parts of the Registration
Statement and the Prospectus comprising information under the caption
"Selling Stockholder" which specifically relate to the Selling Stockholder
are accurate in all material respects at the date the Registration
Statement became effective and at the date of the Prospectus.
A-7-2
Exhibit B
April __, 1998
[Underwriter]
Re: SALE OF 24,000,000 SHARES OF COMMON STOCK
OF HILTON HOTELS CORPORATION
Dear Sirs:
The undersigned, an executive officer of/a director of/a
stockholder of Hilton Hotels Corporation, a Delaware corporation (the
"Company"), understands that [ ] (the "Underwriter") proposes to
enter into a Purchase Agreement (the "Purchase Agreement") with the Company
and the Charitable Remainder Unitrust u/d/t may 8, 1989 (the "Trust")
providing for the sale to the Underwriter of up to 24,000,0000 of shares of
the Company's common stock, par value $2.50 per share (the "Common Stock")
owned by the Trust. In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder of the Company, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agrees with the Underwriter that, during
a period of 90 days from the date of the Purchase Agreement, the undersigned
will not, directly or indirectly, without the prior written consent of the
Underwriter, (i) offer, pledge (other than a pledge to a lending institution
as collateral or security for a bona fide loan), sell contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise dispose of or
transfer any shares of the Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap
transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise; PROVIDED, HOWEVER, that the undersigned may without
such consent (a) exercise any outstanding stock options granted pursuant to
existing employee and director benefit plans of the Company and sell the
shares granted upon such exercise, (b) in connection with bona fide offers to
acquire or otherwise engage in a business combination between the Company
and any third party, transfer, dispose of, grant any option or enter into any
agreement with respect to, the transfer, sale or other disposition of shares
of Common Stock, and (c) with prior notice to the Underwriter, make (x) bona
fide gifts to persons,
B-1
or (y) make transfers or sales to affiliates of the undersigned, in each case
under this clause (c) who agree in writing with the Underwriter to be bound
by the provisions of this letter.
If for any reason the Purchase Agreement shall be terminated prior to
the Closing Time (as defined in the Purchase Agreement), the agreement set forth
above shall likewise be terminated.
Very truly yours,
Signature:
------------------------
Print Name:
-----------------------
B-2