Exhibit 10(u)
VOTING PROXY AGREEMENT
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THIS VOTING PROXY AGREEMENT (hereinafter this "Agreement"), made and
entered this 25th day of August, 1995, by and among WMS Industries Inc., a
Delaware corporation, (hereinafter the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(hereinafter "Redstone"), National Amusements, Inc. (hereinafter "NAI," and
collectively with Redstone the "Shareholders"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, individuals, as Proxy Holder.
W I T N E S S E T H:
WHEREAS, the Company is a publicly traded corporation with common stock,
par value $0.50 per share, traded on the New York Stock Exchange; and,
WHEREAS, as of the date of this Agreement each of the Shareholders owns,
either beneficially or of record, the number of shares of the Company's common
stock, par value $0.50 per share, as set forth opposite such Shareholder's name
on Exhibit A hereto; and,
WHEREAS, the Shareholders are passive investors in the Company, have no
representation on the Board of Directors of the Company and have no involvement
in the management of the Company; and,
WHEREAS, on August 24, 1995, the Nevada Gaming Commission granted the
applications of the Company and its subsidiaries, WMS Games Inc., WMS Gaming
Inc., WMS Gaming (Nevada) Inc., and the Proxy Holder for findings of suitability
as a registered publicly traded corporation, as registered holding companies,
licensure as a manufacturer and distributor of gaming devices, and for licensure
or findings of suitability as directors and officers respectively; and,
WHEREAS, Redstone has an application pending with the Nevada State Gaming
Control Board and Nevada Gaming Commission for a finding of suitability as a
Shareholder of the Company; and,
WHEREAS, the Shareholders have voluntarily decided to grant to the Proxy
Holder a voting proxy for all of the shares of common stock of the Company that
the Shareholders own beneficially or of record at the time of the licensure,
finding of suitability and other approval of the Company and its subsidiaries,
officers and directors by the Nevada Gaming Commission; and,
WHEREAS, in order to assure that the passive investment position of the
Shareholders relative to the Company will not change without prior notification
of the Nevada Gaming Authorities (herein defined), the Shareholders are amenable
to entering this Agreement; and,
WHEREAS, the Company, Shareholders and Redstone have the ability to perform
under this Agreement; and,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, it is agreed as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
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Unless otherwise stated in this Agreement:
"Affiliate" shall have the meaning ascribed to that term by Section
15.482-3 of the Regulations of the Nevada Gaming Commission.
"Common Stock" means all voting equity securities of the Company
beneficially owned by Redstone individually or through his ownership and control
of NAI or any other Person.
"Nevada Gaming Authorities" means the Nevada State Gaming Control Board and
the Nevada Gaming Commission.
"Nevada Board Chairman" means the chairman of the Nevada State Gaming
Control Board or his designee.
"Person" means a natural person, any form of business or social
organization and any other nongovernmental legal entity.
"Proxy Holder" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman of the Board of Directors
of the Company, or in the event ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unable to perform the
duties and exercise the rights of Proxy Holder, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President of
the Company.
"Shareholder" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and National Amusements, Inc.
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ARTICLE 2
CREATION AND TERMINATION OF VOTING PROXY
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2.1 This Agreement shall not be effective until that day which is ten
(10) business days after the date of the Company's registration with the Nevada
Gaming Authorities as a publicly traded corporation. The Proxy Holder shall
file a copy of this Agreement in the registered office of the Company in
Delaware.
2.2 Each Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to confer on the
Proxy Holder the power to carry out the provisions of this Agreement, including
the execution of new or additional proxies.
2.3 The Shareholders shall be entitled to terminate this Agreement
effective thirty (30) calendar days following service of written notice of such
termination on the Company, Proxy Holder and the Nevada Board Chairman.
2.4 Except if, and to the extent, terminated pursuant to paragraph
2.3, this Agreement shall remain effective as to any Common Stock of the Company
owned beneficially or of record by the Shareholders, other than the Common Stock
of the Company previously in such ownership of the Shareholders that is sold or
otherwise disposed of in a transfer to a Person that is not an Affiliate of the
Shareholders, unless and until:
2.4.1 The Shareholders shall be found suitable as a shareholder of
the Company by the Nevada Gaming Authorities pursuant to Nevada Revised Statute
463.643(3); or,
2.4.2 The Shareholders shall not be subject to the provisions of
Nevada Revised Statute 463.643(3).
2.5 Failure by the Company to comply with the notice requirement
described in paragraph 4.1 hereof shall be deemed an automatic termination of
this Agreement as to any subject matter for which such notice was not properly
given by the Company.
2.6 Unless sooner terminated as provided in paragraphs 2.3 through
2.5 hereof, this Agreement shall continue in force until ten (10) years from the
date hereof (hereinafter the "Voting Proxy Term"). Two years before the
expiration of ten (10) years from the date hereof, the parties may agree to
extend this Agreement for another ten (10) years.
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ARTICLE 3
POWERS, RIGHTS AND DUTIES OF PROXY HOLDER
-----------------------------------------
3.1 Each Shareholder, by this Agreement, with respect to the Common
Stock that such Shareholder owns beneficially or of record, does hereby
constitute and appoint the Proxy Holder, with full power of substitution, during
and for the Voting Proxy Term, as their true and lawful attorney-in-fact and
proxy, for and in their name, place and ▇▇▇▇▇, to vote all shares of the Common
Stock as the proxy of the Shareholders, at every annual, special or adjourned
meeting of the Shareholders of the Company, including the right to sign the
Proxy Holder's name as Shareholder to any consent, certificate or other document
relating to the Company that the law of the State of Delaware may permit or
require on any and all matters which may be presented to the Shareholders of the
Company. Actions to be taken by Proxy Holder shall be determined by Proxy
Holder in his sole and absolute discretion. Without limiting the foregoing,
Proxy Holder may exercise all of the voting rights of the Shareholders,
including for example, the right to vote or consent to amendment of the Articles
of Incorporation of Company, sale of all corporate assets, mergers,
consolidations, reductions of capital and dissolutions, except that Proxy Holder
shall not sell, assign or otherwise dispose of the Common Stock. This Agreement
shall continue and be applicable with respect to any securities of the Company
having any voting rights issued by the Company to the Shareholders in
substitution or exchange for, or as a distribution on, the Common Stock of
Company.
3.2 Proxy Holder shall serve without compensation as Proxy Holder and
will be responsible for the payment of all expenses and charges and to employ
and pay such agents and attorneys as Proxy Holder may deem necessary and proper
in the performance of his duties under this Agreement.
3.3 In voting the Common Stock, Proxy Holder shall use his best
judgment from time to time to the end that the affairs of the Company shall be
properly managed. Proxy Holder may cause himself to be elected as director of
the Company and Proxy Holder may act as an employee, officer or agent of company
and be reasonably compensated for his services in such capacity as fully as
though he were not a Proxy Holder.
3.4 Proxy Holder shall not be liable to the Company or the
Shareholders for any act or omission of the Proxy Holder, or any agent of the
Proxy Holder, or be held to any personal liability whatsoever in tort, contract,
or otherwise in connection with the performance of the Proxy Holder's
obligations pursuant to this Agreement, except for liabilities arising from the
Proxy Holder's bad faith, willful misfeasance or reckless disregard of duty.
The Proxy Holder shall not be liable except for the performance of any duties
and obligations as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into the Agreement against the Proxy
Holder. The Proxy Holder shall not be liable with respect to any action taken
or omitted to be taken by the Proxy Holder in good faith. In addition to, and
not in limitation of, the foregoing, no successor Proxy Holder shall in any way
be liable for the acts or omissions of any Proxy Holder or agent of the Proxy
Holder occurring prior to the date on which he became a Proxy Holder.
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3.5 Proxy Holder may consult with counsel, auditors or other experts,
and the advice or opinion of such counsel, auditors, or other experts shall be
full and complete personal protection to the Proxy Holder in respect of any
action taken or suffered by the Proxy Holder in good faith and in reliance upon
or in accordance with such advice or opinion. In discharging his duties, the
Proxy Holder may rely upon financial statements of the Company represented to
the Proxy Holder to be correct by the Person having charge of the Company's
books of account, or stated in a written report by an independent certified
public accountant to present fairly the financial position of the Company. The
Proxy Holder may rely, and shall be personally protected in acting upon any
instrument, certificate, opinion, report, notice, order or other document of any
sort whatsoever delivered to him in connection with this Agreement reasonably
believed by him to be genuine.
3.6 The Shareholders, the Proxy Holder and the Company, indemnify and
hold harmless the members, employees, and agents of the Nevada Gaming
Authorities from any and all losses, liabilities, claims, demands, damages,
deficiencies, expenses, including legal fees and other expenses of investigation
and defending claims and lawsuits, causes of action or suits which shall be
suffered by or arise against the aforesaid parties pursuant to the action or
inaction of such parties under this Agreement.
3.7 Proxy Holder shall not resign or cease to act as Proxy Holder
until a successor Proxy Holder is licensed or granted exemption from licensing
by the Nevada Gaming Authorities. In the event of the death or in the event
that Proxy Holder is adjudicated an incompetent, and a guardian or conservator
is appointed for his Person, business, assets or estate, and such adjudication
is not set aside or reversed or stayed within sixty (60) days from the date of
such adjudication, or, in the event of the total physical or mental disability
of Proxy Holder which persists for a continuous period of six (6) months, the
Board of Directors of the Company shall select a successor Proxy Holder to serve
until the termination of this Agreement. The successor Proxy Holder shall be a
member of the Company's Board of Directors licensed or found suitable by the
Nevada Gaming Authorities or a bank or trust company licensed by the State of
Nevada or the United States (hereinafter the "Institutional Proxy Holder"), with
capital in excess of $100,000,000.00. The successor Institutional Proxy Holder
shall immediately seek exemption from licensing pursuant to the provisions of
Nevada Revised Statute 463.175.
ARTICLE 4
POWERS, RIGHTS AND DUTIES OF SHAREHOLDERS
-----------------------------------------
4.1 The Shareholders shall receive from the Company written notice of
any subject matter that will be presented for approval, consent or ratification
to the Shareholders of the Company at least forty-five (45) calendar days prior
to the date on which the Shareholders of the Company shall vote on, or consent
to, such subject matter. The Company shall provide a copy of such notice to the
Nevada Board Chairman contemporaneous with service of such notice on the
Shareholders.
4.2 The terms of this Agreement do not obligate any Person other than
the
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Shareholders, their Affiliates, the Company, and the Proxy Holder and will
terminate as to any shares of Common Stock of the Company transferred by
Redstone or NAI in accordance with the provisions of paragraph 2.4 hereof.
4.3 The Shareholders shall submit to the Nevada Board Chairman a copy
of any report, form or other document filed by Redstone or NAI with the United
States Securities and Exchange Commission ("SEC"), relative to the Company
contemporaneously with filing such report, form or document with the SEC.
4.4 The Shareholders shall submit to the Nevada Board Chairman
written notice within ten (10) business days of the sale or other disposition of
the Common Stock or any other securities issued by the Company owned by the
Shareholders. The written notice required by this paragraph 4.4 shall specify
the type and number of securities involved in a reported transaction, and the
consideration provided for the disposition of such securities.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
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Each Shareholder, jointly and severally, hereby represents and
warrants to the Company and the Proxy Holder that such Shareholder is the record
or beneficial owner of the shares of Common Stock as set forth in Exhibit A to
this Agreement, free and clear of any proxy or voting restrictions other than
pursuant to this Agreement.
ARTICLE 6
MISCELLANEOUS PROVISIONS
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6.1 IRREVOCABLE PROXY. Except as provided in paragraphs 2.3 through
2.6 and 4.2 hereof, the proxy created by this Agreement is irrevocable.
6.2 TITLES AND SUBTITLES. Titles of the paragraphs and subparagraphs
are placed herein for convenient reference only and shall not to any extent have
the effect of modifying, amending or changing the express terms and provisions
of this Agreement.
6.3 WORDS AND GENDER OR NUMBER. As used herein, unless the context
clearly indicates the contrary, the singular number shall include the plural,
the plural the singular, and the use of any gender shall be applicable to all
genders.
6.4 EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be taken to be an original.
6.5 SEVERABILITY. In the event any parts of this Agreement are found
to be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
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6.6 EFFECTIVE DATE. This Agreement shall be effective only upon
execution by all of the proposed parties.
6.7 WAIVER. No waiver of any provisions of this Agreement shall be
valid unless in writing and signed by the Person or party against whom charged.
6.8 APPLICABLE LAW. Except as provided in paragraph 6.9 hereof, this
Agreement shall be subject to and governed by the laws of the State of Delaware.
6.9 REGULATORY JURISDICTION. This Agreement is subject to the
jurisdiction of the Nevada Gaming Authorities and shall be subject to the
provisions of Chapter 463 of the Nevada Revised Statutes and the Regulations of
the Nevada Gaming Commission in relation to all gaming matters. In this regard,
the laws of the State of Nevada shall govern the validity, construction,
performance and effect of this Agreement.
6.10 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties.
6.11 CERTAIN JUDICIAL REMEDIES. The parties to this Agreement
acknowledge and agree that irreparable damage would result in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
6.12 NOTICES. Every and all notice required hereunder shall be given
by personal service, telecopy transmittal or by overnight courier, to the
parties at the following addresses listed in this Agreement; provided, however,
any party may change its address by written notice to the other parties:
As to the Company WMS Industries Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to the Proxy Holder ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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As to Shareholders ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Viacom, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to Nevada Board Chairman: ▇▇▇▇▇▇▇ ▇. Bible
State Gaming Control Board
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.13 ASSIGNMENT. This Agreement shall not be assigned by operation
of law or otherwise.
IN WITNESS WHEREOF, the parties have entered into this Agreement
effective as of this 25th day of August, 1995.
WMS Industries Inc. Dated September 21, 1995
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ National Amusements, Inc.
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Exhibit A
SCHEDULE OF AFFECTED COMMON STOCK
Name of Stockholder Number of Shares
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3,033,800
National Amusements, Inc. 2,895,300
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TOTAL: 5,929,100
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