UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date
of Report (Date of Earliest Event Reported):
November
13, 2008
Wynn
Resorts, Limited
(Exact
Name of Registrant as specified in Charter)
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Nevada
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000-50028
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46-0484987
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
Number)
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3131 Las Vegas Boulevard
South
Las Vegas, Nevada 89109
(Address of principal executive offices)
(Zip Code)
(702) 770-7555
(Registrant’s telephone number, including area
code)
Not applicable.
(Former name or former address, if
changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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[ ]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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[ ]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[ ]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry Into a Material Definitive Agreement.
On
November 13, 2008, Wynn Resorts, Limited (the “Registrant”) entered into an
Equity Underwriting Agreement, dated November 13, 2008, between the Registrant
and Deutsche Bank Securities Inc. and Banc of America Securities LLC (the
“Underwriters”), for the sale by the Registrant of 8,000,000 shares of its
common stock, par value $0.01 per share. Pursuant to the Equity Underwriting
Agreement, the Registrant granted Deutsche Bank Securities Inc. and Banc of
America Securities LLC the right to purchase up to 1,200,000 additional shares
to cover over-allotments, if any. The Equity Underwriting Agreement is filed
herewith as Exhibit 1.1 and is incorporated herein by reference. The
Registrant’s press releases dated November 13, 2008, relating to the stock
offering, are filed herewith as Exhibits 99.1 and 99.2 and are incorporated
herein by reference.
The
Registrant intends to use the net proceeds for general corporate purposes,
including repayment of any of the Registrant’s debt or debt of its
subsidiaries.
The
Underwriters and certain of their affiliates have performed investment banking,
commercial lending and advisory services for the Registrant and its affiliates,
from time to time, for which they have received customary fees and
expenses.
Deutsche
Bank Securities Inc. acted as joint lead arranger and joint book-running
manager, Deutsche Bank Trust Company Americas, an affiliate of Deutsche Bank
Securities Inc., acted as administrative agent, Banc of America Securities LLC
acted as joint lead arranger and joint book-running manager, Bank of America,
N.A., an affiliate of Banc of America Securities LLC, acted as syndication
agent, and certain of the foregoing entities or affiliates of the foregoing
entities have made extensions of credit to the Registrant in connection with a
credit facility, dated as of June 21, 2007, as amended, providing for a
delayed-draw term loan facility to the Registrant in the aggregate principal
amount of $1.0 billion.
Deutsche
Bank Securities Inc. acted as lead arranger and joint book-running manager,
Deutsche Bank Trust Company Americas, an affiliate of Deutsche Bank Securities,
Inc., acted as administrative agent, issuing lender and swing line lender, Banc
of America Securities LLC acted as lead arranger and joint book running manager,
Bank of America, N.A., an affiliate of Banc of America Securities LLC, acted as
syndication agent, and certain of the foregoing entities or affiliates of the
foregoing entities have made extensions of credit to the Registrant in
connection with the amended and restated credit agreement, dated as of August
15, 2006, as amended, providing for revolving credit and term loan borrowings to
Wynn Las Vegas, LLC, an indirect subsidiary of the Registrant, in the aggregate
principal amount of $1.125 billion, which may be increased to an aggregate
principal amount of $1.575 billion under certain circumstances and upon the
satisfaction of certain conditions.
Deutsche
Bank AG, Hong Kong Branch, an affiliate of Deutsche Bank Securities Inc. and
Bank of America Securities Asia Limited, an affiliate of Banc of America
Securities LLC, each acted as a global coordinating lead arranger under a $1.550
billion amended credit agreement executed on June 27, 2007 by an affiliate of
the Registrant.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits
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1.1
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Equity
Underwriting Agreement, dated November 13, 2008.
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5.1
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Opinion
of Brownstein Hyatt Farber Schreck, LLP.
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23.1
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Consent
of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.1
hereto)
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99.1
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Press
Release, dated November 13, 2008, by Wynn Resorts,
Limited.
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99.2
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Press
Release, dated November 13, 2008, by Wynn Resorts,
Limited.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
Date:
November 14, 2008
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WYNN
RESORTS, LIMITED
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By:
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/s/
Kim Sinatra
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Kim
Sinatra
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Senior
Vice President, General
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Counsel
and Secretary
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Exhibit
1.1
EXECUTION
COPY
8,000,000
Shares
WYNN
RESORTS, LIMITED
Common
Stock
($0.01
Par Value)
EQUITY UNDERWRITING
AGREEMENT
November
13, 2008
Deutsche
Bank Securities Inc.
Banc
of America Securities LLC
c/o
Deutsche Bank Securities Inc.
60
Wall Street, 4th Floor
New
York, New York 10005
Ladies
and Gentlemen:
Wynn
Resorts, Limited, a Nevada corporation (the “Company”), proposes
to sell to you (the “Underwriters”), an
aggregate of 8,000,000 shares (the “Firm Shares”) of the
Company’s Common Stock, par value $0.01 per share (the “Common
Stock”). The respective amounts of the Firm Shares to be so
purchased by you are set forth opposite your names in Schedule I
hereto. The Company also proposes to sell, at the Underwriters’
option, an aggregate of up to 1,200,000 additional shares (the “Option Shares”) of
the Company’s Common Stock as set forth below. The Firm Shares and
the Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the “Shares.” The
offering and sale of the Shares is referred to herein as the “Offering.”
In
consideration of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties hereto agree as
follows:
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1.
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Representations
And Warranties Of The
Company.
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The
Company represents and warrants to the Underwriters as follows:
(a) An
“automatic shelf registration statement” as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form S-3
(File No. 333-146360) in respect of the Shares, including a form of prospectus
(the “Base
Prospectus”), has been prepared and filed by the Company not earlier than
three years prior to the date hereof, in conformity with
the
requirements of the Act and the rules and regulations (the “Rules and
Regulations”) of the Securities and Exchange Commission (the “Commission”)
thereunder. The Company and the transactions contemplated by this
Agreement meet the requirements and comply with the conditions for the use of
Form S-3. Copies of such registration statement, including any
amendments thereto, the Base Prospectus, as supplemented by any preliminary
prospectus (including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the Act, and
including the documents incorporated in the Base Prospectus by reference (a
“Preliminary
Prospectus”), and the exhibits, financial statements and schedules to
such registration statement, in each case as finally amended and revised, have
heretofore been delivered or made available to you. Such registration
statement, together with any registration statement filed by the Company
pursuant to Rules 413(b) and 462(f) under the Act, is herein referred to as the
“Registration
Statement,” which shall be deemed to include all information omitted
therefrom in reliance upon Rules 430A, 430B or 430C under the Act and contained
in the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. “Prospectus” means the
form of prospectus relating to the Shares first filed with the Commission
pursuant to and within the time limits described in Rule 424(b) under the Act
and in accordance with Section 4(a) hereof. Any reference herein to
the Registration Statement, any Preliminary Prospectus or to the Prospectus or
to any amendment or supplement to any of the foregoing documents shall be deemed
to refer to and include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be deemed to
include any documents incorporated by reference therein, and any supplements or
amendments thereto, filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Act, and prior to the termination of the
offering of the Shares by the Underwriters.
(b) As
of the Applicable Time (as defined below) and as of the Closing Date or the
Option Closing Date, as the case may be, neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and any information included
on Schedule II
hereto, all considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free Writing Prospectus
(as defined below), when considered together with the General Disclosure
Package, included or will include any 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; provided, however, that the
Company makes no representations or warranties as to information contained in or
omitted from any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
the Underwriters, specifically for use therein, it being understood and agreed
that the only such information is that described in Section 12
herein. As used in this subsection and elsewhere in this
Agreement:
“Applicable Time”
means 9:30 p.m. (New York time) on the date of this Agreement or such other time
as agreed to by the Company and the Underwriters.
2
“Statutory Prospectus”
means the Base Prospectus, as amended and supplemented immediately prior to the
Applicable Time, including any document incorporated by reference therein and
any prospectus supplement deemed to be a part thereof.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares in the form filed or required to
be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) under the
Act.
“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is identified
on Schedule III to
this Agreement.
“Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(c) The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Nevada, with corporate power and
authority to own or lease and operate its properties and conduct its business as
described in the Registration Statement, the General Disclosure Package and the
Prospectus and as currently conducted and to enter into and to perform its
obligations under this Agreement. Each of the subsidiaries of the
Company is listed on Exhibit A hereto
(each a “Subsidiary,” and
collectively, the “Subsidiaries”) and
has been duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its
organization, with corporate or limited liability company power and authority to
own or lease and operate its properties and conduct its business as described in
the Registration Statement, the General Disclosure Package and the
Prospectus. The Company does not own or control, directly or
indirectly, any corporation, limited liability company, association or other
entity, other than the Subsidiaries listed on Exhibit A
hereto. Each of the Company and its Subsidiaries (collectively, the
“Wynn Parties”)
is duly qualified to transact business in all jurisdictions in which the conduct
of its business requires such qualification, except for such jurisdictions where
the failure to so qualify would not, individually or in the aggregate,
reasonably be expected to result in any material adverse change in the business,
properties, assets, operations, condition (financial or otherwise) or prospects
of, the Wynn Parties, taken as a whole, whether or not occurring in the ordinary
course of business (any such change, a “Material Adverse
Change”).
(d) As
of the date hereof, the authorized capital stock of the Company consists only of
400,000,000 shares of Common Stock, par value $0.01 per share, and 40,000,000
shares of Preferred Stock, par value $0.01 per share. As of the date
hereof, there are 104,012,540 shares
of Common Stock and no shares of Preferred Stock outstanding. All
issued and outstanding member’s interests and shares of capital stock of each of
the Wynn Parties have been duly authorized and validly issued, the shares of
capital stock are fully paid and non-assessable, and the member’s interests and
shares of capital stock have been issued in compliance with federal and state
securities laws. All such member’s interests and shares of capital
stock are owned free and clear of all liens, encumbrances and equities and
claims, except for any lien, encumbrance, equity or claim granted or agreed to
be granted, in each case as accurately described in all material respects in the
Registration Statement, the General Disclosure Package
3
and
the Prospectus (collectively, “Existing
Liens”). None of the outstanding member’s interests or shares
of capital stock of any of the Wynn Parties was issued in violation of any
preemptive rights, rights of first refusal or other similar rights to subscribe
for or purchase securities of any such Wynn Party. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any member’s
interests or shares of capital stock of any of the Wynn Parties other than those
described in all material respects in the Registration Statement, the General
Disclosure Package and the Prospectus. The Shares to be issued by the
Company pursuant to this Agreement have been duly authorized by all necessary
corporate action, and such Shares, when issued, will be validly issued, fully
paid and non-assessable; and, except as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus, no preemptive rights, rights
of first refusal or other similar rights of stockholders or others exist with
respect to any of the Shares or the issue and sale thereof by the
Company. Neither the filing of the Registration Statement nor the
Offering or sale of the Shares contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or relating to
the registration of any shares of Common Stock. The Common Stock
conforms in all material respects to the description thereof contained in the
Registration Statement. The form of certificate for the shares of
Common Stock conforms to the form required by the corporate law of the state of
Nevada.
(e) All
of the Shares conform to the description thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(f) The
execution and delivery of, and the performance by the Company of its obligations
under, this Agreement have been duly and validly authorized by all necessary
corporate action on the part of the Company, and this Agreement has been duly
executed and delivered by the Company.
(g) The
Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the proposed offering of the Shares, and no proceeding for that
purpose or pursuant to Section 8A of the Act has been instituted or, to the
Company’s knowledge, threatened by the Commission. The Registration
Statement contains, and the Prospectus and any amendments or supplements thereto
will contain, all statements which are required to be stated therein by, and
will conform to, the requirements of the Act and the Rules and
Regulations. The documents incorporated, or to be incorporated, by
reference in the Prospectus, at the time filed with the Commission conformed or
will conform, in all respects to the requirements of the Securities Exchange Act
of 1934 (the “Exchange
Act”) or the Act, as applicable, and the rules and regulations of the
Commission thereunder. The Registration Statement and any amendment
thereto do not contain, and will not contain, any untrue statement of a material
fact and do not omit, and will not omit, to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto
do not contain, and will not contain, any untrue statement of a material fact;
and do not omit, and will not 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; provided, however, that the Company makes no
representations or warranties as to information contained
4
in
or omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of the Underwriters,
specifically for use therein, it being understood and agreed that the only such
information is that described in Section 12 herein.
(h) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares or until any
earlier date that the Company notified or notifies the Underwriters as described
in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in
the Registration Statement or the Prospectus, including any document
incorporated by reference and any Prospectus Supplement deemed to be a part
thereof that has not been superseded or modified. If at any time
following issuance of an Issuer Free Writing Prospectus there occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicts
with the information contained in the Registration Statement or contains any
untrue statement of a material fact 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, (A) the Company will promptly notify the
Underwriters and (B) the Company will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriters specifically for use therein, it being understood and agreed
that the only such information furnished by the Underwriters consists of the
information described as such in Section 12 herein.
(i) The
Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other
than any Preliminary Prospectus, the Prospectus and other materials, if any,
permitted under the Act and consistent with Section 4(b) below. The
Company will file with the Commission all Issuer Free Writing Prospectuses in
the time and manner required under Rules 163(b)(2) and 433(d) under the
Act.
(j) (i) At
the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
under the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), and (iii) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c) under the
Act) made any offer relating to the Shares in reliance on the exemption of Rule
163 under the Act and (iv) at the date hereof, the Company is a “well-known
seasoned issuer” as defined in Rule 405 under the Act. The Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) under
the Act objecting to the use of the automatic shelf registration
form.
(k) At
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares and (ii) as of the date
hereof (with such date being used as
5
the
determination date for purposes of this clause (ii)), the Company was not and is
not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking
into account any determination by the Commission pursuant to Rule 405 under the
Act that it is not necessary that the Company be considered an ineligible
issuer), including, without limitation, for purposes of Rules 164 and 433 under
the Act with respect to the offering of the Shares as contemplated by the
Registration Statement.
(l) The
consolidated financial statements of the Company and its Subsidiaries, together
with related notes and schedules as set forth or incorporated by reference in
the Registration Statement, the General Disclosure Package and the Prospectus
(collectively, the “Financial
Statements”), present fairly the consolidated financial position and the
results of operations and cash flows of the Company and its Subsidiaries at the
indicated dates and for the indicated periods. The Financial
Statements have been prepared in accordance with generally accepted principles
of accounting as applied in the United States, consistently applied throughout
the periods involved, except as disclosed therein, and all adjustments necessary
for a fair presentation of results for such periods have been
made. The financial and statistical data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus, including such data set forth under the caption “Selected Financial
Data,” presents fairly the information shown therein and such data has been
compiled on a basis consistent with the financial statements presented therein
and the books and records of the Company and its Subsidiaries, as
applicable. No other financial statements or supporting schedules are
required to be included in the Registration Statement, the General Disclosure
Package and the Prospectus, and there are no pro forma or as adjusted financial
statements which are required to be included in the Registration Statement, the
General Disclosure Package and the Prospectus which have not been included as so
required.
(m) Each
of Deloitte & Touche LLP, which has certified certain of the Financial
Statements included in the Registration Statement, the General Disclosure
Package and the Prospectus, and Ernst & Young LLP, which currently serves as
auditor with respect to the financial statements of the Company and its
Subsidiaries, is an independent public accountant as required by the Act, the
rules and regulations of the Commission and the Public Company Accounting
Oversight Board (United States) (the “PCAOB”).
(n) There
is no action, suit, claim or proceeding pending or, to the knowledge of the Wynn
Parties, (i) threatened against any of the Wynn Parties or (ii) which has as the
subject thereof any officer or director of, or property owned or leased by or
to, any of the Wynn Parties, in each case, before any court or administrative
agency or otherwise where, in any such case, (A) there is a reasonable
possibility of such action, suit, claim or proceeding being determined adversely
to such Wynn Party and (B) any such action, suit, claim or proceeding, if so
determined adversely, would reasonably be expected to result, individually or in
the aggregate, in a Material Adverse Change, or prevent, adversely affect,
hinder or delay the consummation of the transactions contemplated by this
Agreement or the performance by any of the Wynn Parties of their obligations
hereunder, except as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus. Except as otherwise
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, none of the Wynn Parties is involved in any labor dispute with the
employees of any of the Wynn Parties or
6
any
of their predecessors, or with the employees of any principal supplier,
contractor or sub-contractor of any of the Wynn Parties that would reasonably be
expected to result in a Material Adverse Change and, to the best of the Wynn
Parties’ knowledge, no such dispute is threatened or imminent.
(o) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, the Wynn Parties have good title in fee simple to all real
property and good title to all personal property owned by them, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except Existing Liens
or those reflected in the Financial Statements described in Section 1(l) above
or which do not, individually or in the aggregate, materially and adversely
affect the value of such property and do not, individually or in the aggregate,
materially interfere with the use made or proposed to be made of such property
by the Wynn Parties. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the real property,
improvements, equipment and personal property held under lease by the Wynn
Parties are held under valid and enforceable leases, with such exceptions as are
not material and do not materially interfere with the use made or proposed to be
made of such leased real property, improvements, equipment or personal property
by such Wynn Parties.
(p) The
Wynn Parties have timely filed all federal, state, local and foreign tax returns
which have been required to be filed, all of which tax returns are true, correct
and complete in all material respects, and have timely paid all taxes due and
payable, except (i) as may be being contested in good faith and by appropriate
proceedings and for which the Wynn Parties have established reserves that are
adequate for the payment thereof and are in conformity with United States
generally accepted accounting principles consistently applied or (ii) to the
extent that the failure to timely file any such tax returns or to timely pay
such taxes has not resulted in, and would not reasonably be expected to result
in, a Material Adverse Change. All taxes of the Wynn Parties not yet
due and payable have been provided for in the consolidated Financial Statements
described in Section 1(l) above to the extent required by and in conformity with
United States generally accepted accounting principles consistently applied, and
none of the Wynn Parties has received written notice of any actual or proposed
additional material tax assessment against any Wynn Parties.
(q) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, since the respective dates as of which information is given in
each of the Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented, (i) there has not been any
Material Adverse Change or any development that would reasonably be expected to
result in a Material Adverse Change, (ii) the Wynn Parties considered as one
entity, have not incurred any material liability or obligation, indirect, direct
or contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business, and
(iii) there has been no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or other
Subsidiaries, any of its Subsidiaries on any class of capital stock or
repurchase or redemption or call by the Company or any of its Subsidiaries of
capital stock.
7
(r) None
of the Wynn Parties is or, with the giving of notice or lapse of time or both,
will be, in violation of or in default under (i) its articles of incorporation,
by-laws, articles of organization, operating agreement or other organizational
document, (ii) the terms of any security issued by it or any contract,
indenture, mortgage, deed of trust, loan, credit, security or pledge agreement,
promissory note, lease, license, franchise agreement, permit, certificate or
other agreement or instrument to which it is a party or by which it, or any of
its properties, is bound (collectively, the “Agreements and
Instruments”) and, solely with respect to this clause (ii), which
violation or default would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change. The execution,
delivery and performance of this Agreement and compliance by the Company with
its obligations hereunder or thereunder do not and, with the giving of notice or
lapse of time or both, will not conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or, except with respect
to the transactions contemplated by the Registration Statement, the General
Disclosure Package and the Prospectus, result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any Wynn Party
pursuant to, or require the consent of any other party to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens, charges or
encumbrances that, singly or in the aggregate, would not reasonably be expected
to result in a Material Adverse Change, nor will such execution, delivery,
performance or compliance result in any violation of (x) the provisions of the
articles of incorporation, bylaws, articles of organization, operating agreement
or any other organizational document or stockholders’ agreement of any Wynn
Parties, as applicable, or (y) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over it or any of its assets or
properties and, solely with respect to this clause (y), which violation would
reasonably be expected to result in a Material Adverse Change. As
used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by any Wynn Party.
(s) No
approval, consent, order, authorization, designation, declaration or filing by
or with any government, judicial, regulatory, administrative or other legal or
governmental body, foreign or domestic (including, without limitation, the
Nevada Gaming Commission, the Nevada State Gaming Control Board, the Clark
County Liquor and Gaming Licensing Board, the Public Utilities Commission of
Nevada, the Nevada State Engineer’s Office and the Macau Special Administrative
Region of the People’s Republic of China) (together, the “Consents”) is
necessary in connection with the execution, delivery and performance by the
Company of this Agreement, and the consummation of the transactions contemplated
by this Agreement, the General Disclosure Package and the Prospectus, except (i)
such as have already been obtained, (ii) the registration under the Act or the
Rules and Regulations of the Shares, which has become effective, (iii) approvals
by or from the gaming and other regulatory authorities (including, without
limitation, the Nevada Gaming Commission, the Nevada State Gaming Control Board,
the Clark County Liquor and Gaming Licensing Board, the Public Utilities
Commission of Nevada, the Nevada State Engineer’s Office and the Macau Special
Administrative Region of the People’s Republic of China), which have been
obtained, (iv) such Consents as may be required under State securities laws,
Blue Sky Laws, the Nasdaq Global Select Market or the by-laws and rules of the
Financial Industry Regulatory Authority, Inc.
8
(“FINRA”) in connection
with the purchase and distribution of the Shares by you, each of which, except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, has been obtained and is in full force and effect, and (v) as
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus.
(t) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus or as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change, (i) each of the Wynn Parties
has obtained and holds all franchises, licenses, leases, permits, approvals,
notifications, certifications, registrations, authorizations, exemptions,
variances, qualifications, easements, rights of way, liens and other rights,
privileges and approvals (including with respect to environmental laws) required
under any federal, state, local or foreign law or governmental agency or
authority (“Permits”) for the
ownership or current use of all real property owned or leased by any such Wynn
Party and for any other property otherwise currently operated by or on behalf
of, or for the benefit of, such entity and for the operation of each of its
businesses as presently conducted, (ii) all such Permits are in full force and
effect, and each of the Wynn Parties has performed and observed all requirements
of such Permits, (iii) no event has occurred which allows or results in, or
after notice or lapse of time would allow or result in, revocation or
termination by the issuer thereof or in any other impairment of the rights of
the holder of any such Permit, (iv) no such Permits contain any restrictions,
either individually or in the aggregate, that are materially burdensome to any
of the Wynn Parties, or to the current operation of any of their businesses or
any property currently owned, leased or otherwise operated by such entity, (v)
each of the Wynn Parties reasonably believes that each of its Permits will be
timely renewed and complied with and that any additional Permits that may be
required of such entity in order to conduct its business as proposed to be
conducted will be timely obtained and complied with and (vi) none of the Wynn
Parties has any knowledge or any reason to believe that any governmental
authority is considering limiting, suspending, revoking or renewing any such
Permits on terms materially more burdensome than the terms of such Permit as in
effect on the date hereof.
(u) Except
as otherwise disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus or as would not reasonably be expected to result in a
Material Adverse Change, (i) none of the Wynn Parties is, or has in the past
been, 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”);
(ii) none of the Wynn Parties or, to the knowledge of any Wynn Party, any third
party, has used, released, discharged, generated, manufactured, produced,
stored, or disposed of in, on, under, or about the real property owned or leased
by any of the Wynn Parties or any improvements thereon (the “Sites”) or
transported thereto or therefrom, any Hazardous Materials that would reasonably
be expected to subject any of the Wynn Parties to any liability under any
Environmental Law; (iii)
9
there
are no underground tanks and no Hazardous Materials used, stored or present at,
on or near the Sites; (iv) to the knowledge of any of the Wynn Parties after due
inquiry, there is or has been no condition, circumstance, action, activity or
event that could reasonably form the basis of any violation of, or any liability
to any of the Wynn Parties under, any Environmental Law; (v) there is no pending
or, to the knowledge of any of the Wynn Parties, threatened, action, proceeding,
investigation or inquiry by any regulatory or governmental body or any
non-governmental third party with respect to the presence or release of
Hazardous Materials, on, from or to the Sites; (vi) none of the Wynn Parties has
any knowledge of any past or existing violations of any Environmental Laws by
any person relating in any way to the Sites; and (vii) none of the Wynn Parties
has received any complaint, order, directive, citation or notice from any
governmental body with respect to any Environmental Law.
(v) Except
as otherwise disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, (i) the Wynn Parties each own or possess the valid
right to use all material patents, patent rights, trademarks, trade names,
service marks, domain names and copyrights (together with the applications for
registrations and registrations therefor), license rights, know-how (including
trade secrets and other unpatented and unpatentable proprietary or confidential
information, materials, systems or procedures), technologies, inventions, and
other intellectual property or proprietary rights (collectively, “Intellectual
Property”) presently used in their businesses and none of the Wynn
Parties has any reason to believe that it or they will not own or possess or be
able to obtain when needed the valid right to use all Intellectual Property
necessary to carry on their businesses as presently or proposed to be conducted;
(ii) neither the Intellectual Property owned or, to the knowledge of any of the
Wynn Parties, used by, nor the conduct or operation of the businesses (as
presently and proposed to be conducted or operated) of, the Wynn Parties
infringes upon, misappropriates or violates, or, if the businesses are conducted
or operated as presently intended, will, to the knowledge of any of the Wynn
Parties, infringe upon, misappropriate or violate, any Intellectual Property of
any other person or entity; (iii) to the knowledge of the Wynn Parties, none of
the Intellectual Property used by any Wynn Party has been obtained or is being
used by any such Wynn Party in violation of any contractual obligation binding
on such Wynn Party or any of their respective officers, directors or employees
or otherwise in violation of the rights of any persons, except as would not
reasonably be expected to result in a Material Adverse Change; (iv) none of the
Wynn Parties has in the last three years received any material written
communications, nor to the knowledge of the Wynn Parties is any action or
proceeding pending, alleging that any such Wynn Party has violated, infringed
upon or misappropriated, or, by conducting its business as set forth in the
Registration Statement, the General Disclosure Package or the Prospectus, would
violate, infringe upon or misappropriate, any of the Intellectual Property of
any other person or entity; and (v) none of the Wynn Parties knows of any
material infringement by others of Intellectual Property owned by or licensed to
any of the Wynn Parties.
The
Wynn Parties have taken all commercially reasonable steps necessary to secure
their interests in, and protect the secrecy, confidentiality and value of, such
Intellectual Property. There are no outstanding options, licenses or
agreements of any kind relating to the Intellectual Property of the Wynn Parties
that are required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus and are not described therein in all
material respects. None of the Wynn Parties is a party to or bound by
any options, licenses or
10
agreements
with respect to the Intellectual Property of any other person or entity that are
required to be set forth in the Registration Statement, the General Disclosure
Package and the Prospectus and are not described therein in all material
respects.
(w) Neither
the Company nor, to the knowledge of the Company, any of its affiliates (within
the meaning of Rule 144 under the Act) (each, an “Affiliate”), has
taken, nor will the Company, or to the knowledge of the Company, any such
Affiliate, take, directly or indirectly, any action designed to cause or result
in, or which has constituted or which could reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Underwriters may engage in passive market making
transactions in the Securities in accordance with Regulation M under the
Exchange Act.
(x) None
of the Wynn Parties, or to the knowledge of any of the Wynn Parties, any of
their affiliates, has distributed or will distribute, prior to the completion of
the Underwriters’ distribution of the Shares, any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the General Disclosure Package and the Prospectus.
(y) None
of the Wynn Parties is or, after giving effect to the offering and sale of the
Shares contemplated hereunder and the application of the net proceeds from such
sale as described in the General Disclosure Package and the Prospectus, will be
required to register as an “investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended (the “1940 Act”), and the
rules and regulations of the Commission thereunder.
(z) To
the Company’s knowledge, there are no affiliations or associations between any
member of FINRA and any of the Company’s officers, directors or 5% or greater
securityholders, other than (i) as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, and (ii) Baron Capital Group’s
Inc. affiliation with Baron Capital (a member of FINRA and a broker dealer for
several of its affiliated investment advisory firms).
(aa) Each
of the Wynn Parties keeps accurate books and records and maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) The
chief executive officer and chief financial officer of the Company are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Rules 13a-15(e) and 15d-15(e) of the rules and regulations of the
Commission under the Exchange Act) for the Company and have (i) designed such
disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under their supervision, to
11
ensure
that material information relating to the Company and the Subsidiaries is made
known to the chief executive officer and chief financial officer by others
within the Company and the Subsidiaries, (ii) evaluated the effectiveness of the
Company’s disclosure controls and procedures and presented in each annual and
quarterly report of the Company (each, a “Report”) their
conclusions about the effectiveness of the disclosure controls and procedures as
of the end of the period covered by each Report based on such evaluation and
(iii) disclosed in each Report any change in the Company’s internal control over
financial reporting that occurred during the period covered by the Report that
has materially affected, or is reasonably likely to materially affect, the
Company’s internal controls over financial reporting. The chief
executive officer and chief financial officer of the Company have disclosed,
based upon their most recent evaluation of the internal controls over financial
reporting, to the Company’s auditors and the Audit Committee of the Company’s
Board of Directors (x) all significant deficiencies and material weaknesses in
the design or operation of internal controls over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information, and (y) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company’s internal controls. The Company and its
Subsidiaries’ internal control over financial reporting is effective and the
Company and its Subsidiaries are not aware of any material weakness in their
internal control over financial reporting.
(cc) Each
of the Wynn Parties carries, or is covered by, insurance with insurers of
recognized financial responsibility in such amounts, with such deductibles and
covering such risks as is commercially reasonable, and as the Wynn Parties deem
adequate and prudent for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies engaged
in similar businesses including, but not limited to, policies covering real and
personal property owned or leased by the Wynn Parties against theft, damage,
destruction, acts of vandalism and earthquakes. The Wynn Parties have
no reason to believe that such insurance coverage cannot be renewed as and when
such coverage expires or that similar coverage could not be obtained from
similar insurers at a cost that would not reasonably be expected to cause a
Material Adverse Change (other than as a result of general market
conditions).
(dd) Except
for matters which would not reasonably be expected to result in a Material
Adverse Change, each of the Wynn Parties is in compliance with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
(“ERISA”). No
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which any Wynn Parties would have any
liability. None of the Wynn Parties has incurred or expects to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or (ii) Section 412 with respect to unpaid
or delinquent contributions or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder (the
“Code”). Except
for matters which would not reasonably be expected to result in a Material
Adverse Change, each “pension plan” for which any Wynn Parties would have any
liability that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
12
(ee) None
of the Wynn Parties or, to the best knowledge of the Wynn Parties, any director,
officer, agent, employee or other person associated with or acting on behalf of
any of the Wynn Parties or any owner of 10 percent or more of the capital stock
of any of the Wynn Parties has, with respect to any of the Wynn Parties, (i)
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity, (ii) made any unlawful
payment to any foreign or domestic government official or employee from
corporate funds, (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or (iv) made any bribe,
unlawful rebate, payoff, influence payment, kickback or other unlawful
payment.
(ff) The
Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act and files reports with the Commission on the EDGAR
System. The Company’s Common Stock is registered pursuant to Section
12(g) of the Exchange Act and the outstanding shares of the Company’s Common
Stock are listed on the Nasdaq Global Select Market and the Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of its Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq Global Select Market, nor has the Company received any
notification that the Commission or the Nasdaq Global Select Market is
contemplating terminating such registration or listing.
(gg) None
of the Wynn Parties, their Affiliates or any person acting on their behalf
(other than the Underwriters, as to whom the Company makes no representation)
has engaged, or will engage, in connection with the offering of the Shares, in
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Act.
(hh) No
relationship, direct or indirect, exists between or among any of the Wynn
Parties or the Subsidiaries, on the one hand, and any manager, member, managing
member, director, officer, stockholder, affiliate, customer or supplier of any
of them, on the other hand, which would be required by the Act or by the Rules
and Regulations promulgated pursuant thereto to be disclosed in a registration
statement on Form S-3 which is not so disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus.
(ii) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, there are no holders of securities (debt or equity) of the Wynn
Parties, or holders of rights (including, without limitation, preemptive
rights), warrants or options to obtain securities of the Wynn Parties, who in
connection with the issuance, sale and delivery of the Shares and the execution,
delivery and performance of this Agreement, have the right to request the Wynn
Parties to register securities held by them under the Act, and any such rights
so disclosed have either been fully complied with by the Company or effectively
waived by the holders thereof, and any such waivers remain in full force and
effect.
(jj) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, there are no contracts, agreements or understandings between the
Company (or any Subsidiary) and any person that would give rise to a valid claim
against the Company, any Subsidiary or you for a brokerage commission, finder’s
fee or other like payment in connection with the transactions contemplated by
this Agreement, General Disclosure Package
13
and
the Prospectus or, to the Company’s or any Subsidiary’s knowledge, any
arrangements, agreements, understandings, payments or issuance with respect to
the Company or any Subsidiary or any of their respective officers, directors,
shareholders, partners, employees, subsidiaries or affiliates that may affect
your compensation as determined by FINRA.
Any
certificate required hereunder signed by or on behalf of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to the
matters covered thereby (and is subject to the limitations set forth therein, if
any).
The
Company acknowledges that the Underwriters and, for purposes of the opinions to
be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to
the Underwriters, will rely upon the accuracy and truthfulness of the foregoing
representations and hereby consent to such reliance.
|
|
2.
|
Purchase,
Sale And Delivery Of The
Shares.
|
(a) On
the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $43.50 per share, the number of Firm Shares set forth
opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof.
(b) Payment
for the Firm Shares to be sold hereunder, less the underwriting fee set forth
opposite the name of each Underwriter in Schedule I hereof, is to be made in
Federal (same day) funds to an account designated by the Company against
electronic delivery thereof of the Firm Shares to the accounts of the
Underwriters through the facilities of The Depository Trust Company (“DTC”) in New York,
New York, in accordance with the instructions from the
Underwriters. Such payment and delivery are to be made through the
facilities of DTC, New York, New York at 10:00 a.m., New York time, on November
18, 2008 or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the “Closing
Date.” (As used herein, “business day” means a day on which
the New York Stock Exchange is open for trading and on which banks in New York
are open for business and are not permitted by law or executive order to be
closed.)
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters to purchase the Option Shares at the price
per share as set forth in the first paragraph of this Section 2. The
option granted hereby may be exercised in whole or in part by giving written
notice (i) at any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, to the Company setting forth
the number of Option Shares as to which you are exercising the option and the
time and date at which such Shares are to be delivered. The time and
date at which Option Shares are to be electronically delivered shall be
determined by the Underwriters but shall not be earlier than two nor later than
10 full business days after the exercise of such option, nor in any event prior
to the Closing Date
14
(such
time and date being herein referred to as the “Option Closing
Date”). The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters. You may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment
for the Option Shares, less the underwriting fee applicable to the Option Shares
set forth in Schedule I hereto, shall be made on the Option Closing Date in
Federal (same day) funds to an account designated by the Company against
electronic delivery thereof of the Option Shares to the accounts of the
Underwriters through the facilities of DTC in New York, New York, in accordance
with the instructions from the Underwriters.
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|
3.
|
Offering
By The Underwriters.
|
(a) It
is understood that the Underwriters are to make a public offering of the Firm
Shares as soon as the Underwriters deem it advisable to do so. The
Firm Shares are to be initially offered to the public at the public offering
price set forth in the Prospectus. The Underwriters may from time to
time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased
pursuant to Section 2 hereof, the Underwriters will offer them to the public on
the foregoing terms.
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|
4.
|
Covenants
of the Company.
|
The
Company covenants and agrees with the Underwriters that:
(a) The
Company will (A) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Act a Prospectus in a form
approved by the Underwriters containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rules 430A,
430B or 430C under the Act, (B) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference therein of which
the Underwriters shall not previously have been advised and furnished with a
copy or to which the Underwriters shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations and (C) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to the date
of the Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.
(b) The
Company will (i) not make any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 under the Act) required to be filed
by the Company with the Commission under Rule 433 under the Act unless the
Underwriters approve its use in writing prior to first use (each, a “Permitted Free Writing
Prospectus”); provided that the
prior written consent of the Underwriters shall be deemed to have been given in
respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto,
(ii) treat each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433
under the Act applicable to any Issuer Free Writing Prospectus, including
the
15
requirements
relating to timely filing with the Commission, legending and record keeping and
(iv) not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Act
a free writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file
thereunder.
(c) The
Company will advise the Underwriters promptly (A) when any post-effective
amendment to the Registration Statement or new registration statement relating
to the Shares shall have become effective, or any supplement to the Prospectus
shall have been filed, (B) of the receipt of any comments from the Commission,
(C) of any request of the Commission for amendment of the Registration Statement
or the filing of a new registration statement or any amendment or supplement to
the General Disclosure Package or the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for any additional
information, and (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or such new
registration statement or any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or
of the institution of any proceedings for that purpose or pursuant to Section 8A
of the Act. The Company will use its best efforts to prevent the
issuance of any such order and to obtain as soon as possible the lifting
thereof, if issued.
(d) If,
at any time after the Underwriters have informed the Company that Shares remain
unsold, the Company receives from the Commission a notice pursuant to Rule
401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic
shelf registration statement form, the Company will (i) promptly notify the
Underwriters, (ii) promptly file a new registration statement or post-effective
amendment on the proper form relating to the Shares, in a form satisfactory to
the Underwriters, (iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective as soon as
practicable (if such filing is not otherwise effective immediately pursuant to
Rule 462 under the Act), and (iv) promptly notify the Underwriters of such
effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Registration Statement that was the subject of the notice
under Rule 401(g)(2) under the Act or for which the Company has otherwise become
ineligible. References herein to the Registration Statement relating
to the Shares shall include such new registration statement or post-effective
amendment, as the case may be.
(e) If
immediately prior to the third anniversary (the “Renewal Deadline”) of
the initial effective date of the Registration Statement the Underwriters have
informed the Company that Shares remain unsold, the Company will, prior to the
Renewal Deadline file, if it has not already done so and is eligible to do so, a
new automatic shelf registration statement relating to the Shares, in a form
satisfactory to the Underwriters. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company will,
prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Shares, in a form satisfactory to the
Underwriters, and will use its best efforts to cause such registration statement
to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the expired registration
statement. References
16
herein
to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may
be.
(f) The
Company agrees to pay the required filing fees to the Commission relating to the
Shares within the time required by Rule 456(b)(1) under the Act without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
under the Act.
(g) The
Company will cooperate with the Underwriters in endeavoring to qualify the
Shares for sale under (or obtain exemptions from the application of the
qualification requirements of) the securities laws of such jurisdictions as the
Underwriters may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Company will, from time to time, prepare and file
such statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the Underwriters
may reasonably request for distribution of the Shares. The Company
shall advise the Underwriters promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Shares for offering,
sale or trading in any jurisdiction or any initiation of threat of any
proceeding for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the Company shall use
its best efforts to obtain the withdrawal thereof at the earliest possible
moment.
(h) The
Company will deliver to, or upon the order of, the Underwriters, from time to
time, as many copies of any Preliminary Prospectus or any Issuer Free Writing
Prospectus as the Underwriters may reasonably request. The Company
will deliver to, or upon the order of, the Underwriters during the period when
delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule
173(a) under the Act) (the “Prospectus Delivery
Period”) is required under the Act, as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriters may
reasonably request. The Company will maintain in the Company’s files
manually signed copies of the Registration Statement as initially filed and all
amendments thereto including all consents and exhibits filed therewith in
accordance with the Rules and Regulations of the Commission.
(i) The
Company will comply with the Act, the Exchange Act and the rules and regulations
of the Commission thereunder, so as to permit the completion of the distribution
of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Act) is required by
law to be delivered by an Underwriter or a dealer, any event shall occur as a
result of which, in the judgment of the Company or in the reasonable opinion of
the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time prior to the consummation of the Offering to amend
or supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (ii) prepare and file
with the
17
Commission
an appropriate filing under the Exchange Act which shall be incorporated by
reference in the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with the law.
(j) If
the General Disclosure Package is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur as a result of which, in the judgment of the Company or in
the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the
Registration Statement then on file, or if it is necessary at any time to amend
or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the General
Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on
file, or so that the General Disclosure Package will comply with
law.
(k) The
Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement (which need not be audited) in reasonable
detail, complying with the requirements of Section 11(a) of the Act and Rule 158
under the Act and will advise you in writing when such statement has been so
made available.
(l) Prior
to the Closing Date, the Company will furnish to the Underwriters, as soon as
they have been prepared by or are available to the Company, a copy of any
unaudited interim financial statements of the Company for any period subsequent
to the period covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(m) No
offering, sale, short sale or other disposition of any shares of Common Stock of
the Company or other securities convertible into or exchangeable or exercisable
for shares of Common Stock or derivative of Common Stock (or
agreement for such) will be made for a period of 30 days after the date of this
Agreement, directly or indirectly, by the Company otherwise than hereunder or
with the prior written consent of the Underwriters, which consent shall not be
unreasonably withheld; provided, however, that the
Company may issue (i) shares of its Common Stock upon the exercise of options,
(ii) shares of its Common Stock pursuant to stock grants and (iii) options to
purchase its Common Stock, to directors, officers and employees of the Company,
issued pursuant to employee or director benefit plans, stock option plans or the
employee compensation plans.
(n) The
Company will use its best efforts to list, subject to notice of issuance, the
Shares on the Nasdaq Global Select Market.
18
(o) The
Company will use its best efforts to cause each executive officer, director,
other person or entity of the Company listed on Exhibit B furnish to
you, on or prior to the Closing Date, a letter or letters, substantially in the
form of Exhibit C hereto
(the “Lockup
Agreement”).
(p) The
Company shall apply the net proceeds of its sale of the Shares as set forth in
the General Disclosure Package and the Prospectus and shall file such reports
with the Commission with respect to the sale of the Shares and the application
of the proceeds therefrom as may be required in accordance with Rule 463 under
the Act.
(q) The
Company shall not invest, or otherwise use the proceeds received by the Company
from its sale of the Shares in such a manner as would require the Company or any
of the Subsidiaries to register as an investment company under the 1940
Act.
(r)
The Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the Common
Stock.
(s)
The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
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5.
|
Costs
And Expenses.
|
The
Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the
generality of the foregoing, the following: (i) accounting fees of
the Company; (ii) the fees and disbursements of counsel for the Company; (iii)
the cost of printing and delivering to, or as requested by, the Underwriters
copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free
Writing Prospectuses, the Prospectus, this Agreement, the Listing Application,
the Blue Sky Survey and any supplements or amendments thereto; (iv) the filing
fees of the Commission; (v) the filing fees and expenses (including reasonable
and documented legal fees and disbursements of counsel to the Underwriters, not
to exceed $15,000) incident to securing any required review by FINRA of the
terms of the sale of the Shares; (vi) the Listing Fee of the Nasdaq Global
Select Market; and (vii) the expenses, including the reasonable and documented
fees and disbursements of counsel for the Underwriters, incurred in connection
with the qualification of the Shares under State securities or Blue Sky
laws. The Company shall not, however, be required to pay for the
Underwriters’ costs and expenses (other than those as described in clauses (v)
and (vii) above), including, without limitation, (a) the fees and expenses of
counsel to the Underwriters (other than as set forth above), (b) the “roadshow”
expenses of the Underwriters and (c) the advertising expenses of the
Underwriters incurred in connection with the Offering; provided, however, if the sale
of Shares pursuant to Section 2 of this Agreement shall not be consummated
because the conditions in Section 6 hereof (other than Section 6(f)) are not
satisfied, or because this Agreement is terminated by the Underwriters pursuant
to Section 10(a) hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure, refusal or inability is due primarily to the
default or omission of
19
an
Underwriter, the Company shall reimburse the Underwriters for reasonable
out-of-pocket expenses, including reasonable and documented fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company shall not in any event be liable to
the Underwriters for damages on account of loss of anticipated profits from the
sale by them of the Shares.
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6.
|
Conditions
Of Obligations Of The
Underwriters.
|
The
several obligations of the Underwriters to purchase the Firm Shares on the
Closing Date and the Option Shares, if any, on the Option Closing Date are
subject to the accuracy, as of the Applicable Time, the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder to be performed prior to the Closing Date or
the Option Closing Date, as the case may be, and to the following additional
conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and the Prospectus and each Issuer Free Writing Prospectus
required shall have been filed as required by Rules 424(b) (without reliance on
Rule 424(b)(8)), 430A, 430B, 430C or 433 under the Act, as applicable, within
the time period prescribed by, and in compliance with, the Rules and
Regulations, and any request of the Commission for additional information (to be
included in the Registration Statement or otherwise) shall have been disclosed
to the Underwriters and complied with to their reasonable
satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose or pursuant to Section 8A under the Act shall
have been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the
Shares.
(b) The
Underwriters shall have received from Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Company, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, substantially in the form attached hereto as
Annex
I.
(c) The
Underwriters shall have received from Brownstein Hyatt Farber Schreck, LLP,
special Nevada counsel for the Company, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially in the form attached
hereto as Annex
II.
(d) The
Underwriters shall have received from Manuel Alexandre de Oliveira Correia de
Silva, special Macau counsel for the Company, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, substantially in the form
attached hereto as Annex
III.
20
(e) The
Underwriters shall have received from Latham & Watkins LLP, counsel for the
Underwriters, an opinion dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance reasonably satisfactory to the
Underwriters.
(f) The
Underwriters shall have received at or prior to the Closing Date from Latham
& Watkins LLP a memorandum or summary, in form and substance satisfactory to
the Underwriters, with respect to the qualification for the Offering by the
Underwriters of the Shares under the State securities or Blue Sky laws of such
jurisdictions as the Underwriters may reasonably have designated to the
Company.
(g) You
shall have received, on each of the date hereof, the Closing Date and, if
applicable, the Option Closing Date, a letter dated the date hereof, the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to you, of Ernst & Young LLP, and on the date hereof, a letter
dated the date hereof, in form and substance satisfactory to you, of Deloitte
& Touche LLP, confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and Regulations and
the PCAOB and stating that in their opinion the financial statements and
schedules examined by them and included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus comply
in form in all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations; and, in the case of
Ernst & Young LLP, containing such other statements and information as
is ordinarily included in accountants’ “comfort letters” to Underwriters with
respect to the financial statements and certain financial and statistical
information contained or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus.
(h) The
Underwriters shall have received on the Closing Date and, if applicable, the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer or President and the Chief Financial Officer of the
Company to the effect that, as of the Closing Date or the Option Closing Date,
as the case may be, each of them severally represents as follows:
(i) The
conditions set forth in subsection (a) of this Section 6 have been satisfied,
the Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus has been issued, and no proceedings for such
purpose or pursuant to Section 8A of the Act have been taken or are, to his
knowledge, contemplated or threatened by the Commission;
(ii) The
representations and warranties of the Company contained in Section 1 hereof were
true and correct as of the date hereof and are true and correct as of the
Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to
have been made pursuant to Rules 424(b), 430A, 430B or 430C under the Act have
been made as and when required by such rules;
21
(iv) He has carefully examined
the General Disclosure Package and any individual Limited Use Free Writing
Prospectus and, in his or her opinion, as of the Applicable Time, the statements
contained in the General Disclosure Package and any individual Limited Use Free
Writing Prospectus did not contain any untrue statement of a material fact, and
such General Disclosure Package and any individual Limited Use Free Writing
Prospectus, when considered together with the General Disclosure Package, did
not 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;
(v) He has carefully examined
the Registration Statement and, in his or her opinion, as of the effective date
of the Registration Statement, the Registration Statement and any amendments
thereto did not contain any untrue statement of a material fact and did not omit
to state a material fact necessary in order to make the statements therein not
misleading, and since the effective date of the Registration Statement, no event
has occurred which should have been set forth in a supplement to or an amendment
of the Prospectus which has not been so set forth in such supplement or
amendment;
(vi) He has carefully examined the
Prospectus and, in his or her opinion, as of its date and the Closing Date or
the Option Closing Date, as the case may be, the Prospectus and any amendments
and supplements thereto did not contain any untrue statement of a material fact
and did not 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; and
(vii) Since the respective dates as
of which information is given in the Registration Statement, the General
Disclosure Package and Prospectus, there has not been any Material Adverse
Change or any development that could reasonably be expected to result in a
Material Adverse Change, whether or not arising in the ordinary course of
business.
(i) The
Company shall have furnished to the Underwriters such further certificates and
documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Underwriters may
reasonably have requested.
(j) The
Firm Shares and Option Shares, if any, have been duly listed, subject to notice
of issuance, on the Nasdaq Global Select Market.
(k) Each
executive officer, director, other person or entity listed on Exhibit B shall have
executed and delivered to the Underwriters the Lock-up Agreements, and such
Lock-up Agreements are in full force and effect.
(l) For
the period from and after the date of this Agreement and prior to the Closing
Date and, with respect to the Option Shares, any Option Closing Date, in the
judgment of the Underwriters, there shall not have occurred any Material Adverse
Change. The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Underwriters and to
Latham & Watkins LLP, counsel for the Underwriters.
22
If
any of the conditions hereinabove provided for in this Section 6 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by notifying the
Company of such termination in writing or by telegram at or prior to the Closing
Date or the Option Closing Date, as the case may be.
In
such event, the Company and the Underwriters shall not be under any obligation
to each other (except to the extent provided in Sections 5 and 8
hereof).
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7.
|
Conditions
Of The Obligations Of The
Company.
|
The
obligations of the Company to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are subject to
the conditions that at the Closing Date or the Option Closing Date, as the case
may be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and be in effect or proceedings therefor initiated or
threatened.
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8.
|
Indemnification.
|
(a) The
Company agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act, against any losses, claims, damages
or liabilities to which such Underwriter or any such controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or
any amendment or supplement thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made or (iii) any act or failure to act, or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the Offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided, that the
Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct); provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by the
Underwriters specifically for use in the preparation thereof. The
Company also agrees to reimburse each Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or
23
liability,
action or proceeding or in responding to a subpoena or governmental inquiry
related to the Offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the
event that it is finally judicially determined that the Underwriters were not
entitled to receive payments for legal and other expenses pursuant to this
subparagraph, the Underwriters will promptly return all sums that had been
advanced pursuant hereto.
(b) Each
Underwriter severally and not jointly will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer, or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or
any amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus or any
amendment or supplement thereto, or the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by the Underwriters specifically for use
thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 8, such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”) in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or
(b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall
pay
24
as
incurred the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel at its own
expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the reasonable fees and
expenses of the counsel retained by the indemnified party in the
event (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel, (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party shall have
failed to assume the defense and employ counsel reasonably acceptable to the
indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm for all such indemnified parties. Such firm shall
be designated in writing by you in the case of parties indemnified pursuant to
Section 8(a) and by the Company in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To
the extent the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under Section 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the Offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the Offering (before deducting expenses) received by the Company bear to
the total underwriting discounts, commissions and fees received by the
Underwriters, in each case as set forth on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to
25
information
supplied by the Company on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) 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
8(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts, commissions and fees applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) In
any proceeding relating to the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any supplement
or amendment thereto, each party against whom contribution may be sought under
this Section 8 hereby consents to the jurisdiction of any state or federal court
in New York City, agrees that process issuing from such court may be served upon
it by any other contributing party and consents to the service of such process
and agrees that any other contributing party may join it as an additional
defendant in any such proceeding in which such other contributing party is a
party.
(f) Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 8 shall be
paid by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any persons controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter, or any
person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 8.
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9.
|
Default
by Underwriters.
|
If
on the Closing Date or the Option Closing Date, as the case may be, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company), the Underwriters shall use
their reasonable efforts to procure within 36 hours thereafter one or more other
underwriters, to purchase from the Company such amounts as may be
agreed upon and upon the terms set forth herein, the Shares which the defaulting
Underwriter
26
failed
to purchase. If during such 36 hours the Underwriters shall not have
procured such other underwriters to purchase the Shares agreed to be purchased
by the defaulting Underwriter, then (a) if the aggregate number of
Shares with respect to which such default shall occur does not exceed 10% of the
Shares to be purchased on the Closing Date or the Option Closing date, as the
case may be, the non-defaulting Underwriter shall be obligated to purchase the
Shares which such defaulting Underwriter failed to purchase, or (b) if the
aggregate number of Shares with respect to which such default shall occur
exceeds 10% of the Shares to be purchased on the Closing Date or the Option
Closing Date, as the case may be, the Company or the non-defaulting Underwriter
will have the right, by written notice given within the next 36-hour period to
the parties to this Agreement, to terminate this Agreement without liability on
the part of the non-defaulting Underwriter or of the Company except to the
extent provided in Sections 5 and 8 hereof. In the event of a default
by any Underwriter, as set forth in this Section 9, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as the non-defaulting Underwriter may determine in order
that the required changes in the Registration Statement, the General Disclosure
Package or in the Prospectus or in any other documents or arrangements may be
effected. The term “Underwriter” includes any person substituted for
a defaulting Underwriter. Any action taken under this Section 9 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
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10.
|
Notices.
|
All
notices and other communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: (i) if to the Underwriters, to Deutsche
Bank Securities Inc., 60 Wall Street, 4th Floor,
New York, New York 10005; Attention: Syndicate Manager, with a copy to Deutsche
Bank Securities Inc., 60 Wall Street, 36th Floor,
New York, New York 10005, Attention: General Counsel, with a copy to
Underwriters’ Counsel at Latham & Watkins LLP, 663 West Fifth Street, Suite
4000, Los Angeles, California 90071, Attention: Pamela B. Kelly, Esq.; and (ii)
if to the Company, to Kim Sinatra, Esq., and its counsel at Skadden, Arps,
Slate, Meagher & Flom LLP at the addresses set forth in the Registration
Statement.
|
|
11.
|
Termination.
|
This
Agreement may be terminated by you: (a) by notice to the Company at any time
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to Option Shares) if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the Prospectus, any
Material Adverse Change or any development that could, in your judgment, be
expected to result in a Material Adverse Change, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your reasonable
judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, (iii) suspension of trading in
securities generally on the New York Stock Exchange, the
27
American
Stock Exchange or the Nasdaq Global Select Market or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on any
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Company, (v)
the declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of any of the Company’s debt securities by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Exchange Act); (vii) the suspension of trading of the
Company’s Common Stock by the Nasdaq Global Select Market, the Commission, or
any other governmental authority or, (viii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or (b) as provided in Section 6 of this
Agreement.
|
|
12.
|
Successors.
|
This
Agreement has been and is made solely for the benefit of the Underwriters and
the Company and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation
hereunder. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign merely because of such
purchase.
|
|
13.
|
Information
Provided By Underwriters.
|
The
Company and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company for inclusion in
the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus consists of the information set forth in the third,
tenth through sixteenth and twentieth paragraphs under the caption
“Underwriting” in the Prospectus.
|
|
14.
|
Partial
Enforceability.
|
The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is, for any reason, determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable and to effect the
original intent of the parties hereto.
|
|
15.
|
Miscellaneous.
|
The
reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the
28
Company
or its directors or officers and (c) delivery of and payment for the Shares
under this Agreement.
The
Company acknowledges and agrees that each Underwriter in providing investment
banking services to the Company in connection with the offering, including in
acting pursuant to the terms of this Agreement, has acted and is acting as an
independent contractor and not as a fiduciary and the Company does not intend
such Underwriter to act in any capacity other than as an independent contractor,
including as a fiduciary or in any other position of higher trust.
This
Agreement may be executed in two or more counterparts (including by facsimile),
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, including, without limitation, Section 5-1401 of the New
York General Obligations Law.
(Signature
Page Follows)
29
If the foregoing letter is in
accordance with your understanding of our agreement, please sign and return to
us the enclosed duplicates hereof, whereupon it will become a binding agreement
between the Company and the Underwriters in accordance with its
terms.
|
Very
truly yours,
|
|||
|
WYNN
RESORTS, LIMITED
|
|||
|
a
Nevada corporation
|
|||
|
By
|
/s/
Kim Sinatra
|
||
|
Name:
|
Kim
Sinatra
|
||
|
Title:
|
Senior
Vice President
|
||
|
The
foregoing Underwriting Agreement is
hereby
confirmed and accepted as of the
date
first above written.
|
|
|
DEUTSCHE
BANK SECURITIES INC.
By:
__/s/ Jeremy
Fox_________________
Name: Jeremy
Fox
Title: Managing
Director
|
|
|
By: __/s/ Brad
Miller_________________
Name: Brad
Miller
Title: Managing
Director
|
Wynn
Resorts, Limited
Equity
Underwriting Agreement
|
The
foregoing Underwriting Agreement is
hereby
confirmed
and accepted as of the
date
first above
written.
|
|
|
BANC
OF AMERICA SECURITIES LLC
By: __/s/ Brad
Smith_________________
Name: Brad
Smith
Title: Managing
Director
|
Exhibit
5.1
November
14, 2008
Wynn
Resorts, Limited
3131
Las Vegas Boulevard South
Las
Vegas, Nevada 89109
Ladies
and Gentlemen:
We have
acted as special Nevada counsel to Wynn Resorts, Limited, a Nevada corporation
(the “Company”), in connection with the filing by the Company of a Registration
Statement on Form S-3 (the “Registration Statement”), including the form of
prospectus, dated September 27, 2007 (the “Base Prospectus”), as supplemented by
the Prospectus Supplement, dated November 13, 2008 (together with the Base
Prospectus, the “Prospectus”), with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Act”), relating
to the registration by the Company of up to 9,200,000 shares (the "Shares") of
the Company’s common stock, par value $0.01 per share (the “Common
Stock”).
In our
capacity as such counsel, we are familiar with the proceedings taken and
proposed to be taken by the Company in connection with the authorization,
issuance and sale of the Shares, as referenced in the Registration
Statement. For purposes of this opinion letter, we have assumed all
such proceedings will be timely completed in the manner presently proposed and
the terms of such issuance will be in compliance with applicable
laws.
In
rendering the opinions hereinafter expressed, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of the Registration
Statement including the Prospectus, the Company’s articles of incorporation and
bylaws, each as amended to date, that certain Underwriting Agreement, dated as
of November 13, 2008, by and among
Deutsche Bank Securities Inc. and Banc of America Securities LLC, as Underwriters, and the Company (the
“Underwriting Agreement”), and such other documents, agreements,
instruments and corporate records, as we have deemed necessary or appropriate
for the purposes of this opinion letter. We have also obtained from
officers, representatives and agents of the Company and from public officials,
and have relied upon, such certificates, representations and assurances as we
have deemed necessary and appropriate for the purpose of issuing this opinion
letter.
Without
limiting the generality of the foregoing, in our examination, we have, with your
permission, assumed without independent verification, that (i) each document we
reviewed has been duly executed and delivered by the parties thereto to the
extent due execution and delivery are prerequisites to the effectiveness
thereof; (ii) the obligations of each party to any such document we examined are
its valid and binding obligations, enforceable in accordance with its terms;
(iii) each natural person executing a document has sufficient legal capacity to
do so; (iv) all documents submitted to us as originals are authentic, the
signatures on all documents that we examined are genuine, and all documents
submitted to us as certified, conformed, photostatic, electronic or facsimile
copies conform to the original document; (v) all documents that we examined
accurately describe and contain the mutual understanding of the parties thereto
and there are no oral or written agreements or understandings, and there is no
course of prior dealing, between or among any of the parties that would in any
manner vary or supplement the terms and provisions of such documents, or of the
relationships
100 City Parkway, Suite
1600 |
Las Vegas, NV 89106-4614 702.382.2101 tel
Brownstein
Hyatt Farber Schreck, LLP |
bhfs.com702.382.8135
fax
Wynn
Resorts, Limited
November
14, 2008
Page
2
set
forth therein, or which would constitute a waiver of any of the provisions
thereof by the actions or conduct of the parties or otherwise, or which would
have an effect on the opinions rendered herein; and (vi) all corporate records
made available to us by the Company, and all public records we have reviewed,
are accurate and complete.
We are
qualified to practice law in the State of Nevada. The opinions set
forth herein are expressly limited to the effect of the general corporate laws
of the State of Nevada as in effect as of the date hereof and we do not purport
to be experts on, or to express any opinion herein concerning, or to assume any
responsibility as to the applicability to or the effect on any of the matters
covered herein of, the laws of any other jurisdiction. We express no
opinion concerning, and we assume no responsibility as to laws or judicial
decisions related to, or any orders, consents or other authorizations or
approvals as may be required by, any federal laws, rules or regulations,
including any federal securities laws, rules or regulations, or any state
securities or “blue sky” laws, rules or regulations.
Based
on the foregoing, and in reliance thereon, and having regard to legal
considerations and other information that we deem relevant, we are of the
opinion that the Shares have been duly authorized, and when and to the extent
issued and sold in accordance with the Underwriting Agreement and the
proceedings described in the Registration Statement, will be validly issued,
fully paid and non-assessable.
The
opinions expressed herein are based upon the applicable Nevada laws in effect
and the facts in existence as of the date of this opinion letter. In
delivering this opinion letter to you, we assume no obligation, and we advise
you that we shall make no effort, to update the opinions set forth herein, to
conduct any inquiry into the continued accuracy of such opinions, or to apprise
you of any facts, matters, transactions, events or occurrences taking place, and
of which we may acquire knowledge, after the date of this letter, or of any
change in any applicable Nevada law or any facts occurring after the date of
this opinion letter, which may affect the opinions set forth
herein. No opinions are offered or implied as to any matter, and no
inference may be drawn, beyond the strict scope of the specific issues expressly
addressed by the opinions herein.
We
consent to your filing this opinion letter as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading “Legal
Matters.” In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very
truly yours,
/s/
Brownstein Hyatt Farber Schreck, LLP
Exhibit
99.1
Wynn
Resorts Announces Common Stock Offering
LAS
VEGAS—(BUSINESS WIRE)—Nov. 13, 2008—Wynn Resorts, Limited (Nasdaq:WYNN)
announced today that it intends to offer, subject to market conditions and other
factors, 5,000,000 newly issued shares of its common stock in conjunction with
the November 10th
announcement of the Company’s inclusion in the S&P 500. In
connection with the offering, Wynn Resorts has granted to Deutsche Bank
Securities Inc. and Banc of America Securities LLC, who are acting as joint book
running managers and underwriters for the offering, an option to purchase up to
an additional 750,000 shares of common stock solely to cover over-allotments, if
any. Wynn Resorts intends to use the proceeds for general corporate purposes,
including repayment of debt.
An
automatic shelf registration statement relating to the common stock was
previously filed with the Securities and Exchange Commission and became
effective upon such filing. This press release shall not constitute an offer to
sell or a solicitation of an offer to buy the common stock nor shall there be
any sale of these shares of common stock in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state or jurisdiction. The
offering of these shares is being made only by means of a prospectus supplement
and related prospectus. A copy of the prospectus relating to the shares may be
obtained by contacting Deutsche Bank Securities Inc. by mail, Attn: Prospectus
Department, 100 Plaza One, Jersey City, NJ 07311, by telephone at (800) 503-4611
or by email: prospectusrequest@list.db.com;
and Banc of America Securities LLC by mail, Attn: Capital Markets Operations,
100 West 33rd Street,
3rd
Floor, New York, NY 10001, or by email: dg.prospectus_distribution@bofasecurities.com.
This
press release contains forward-looking statements about Wynn Resorts, including
those relating to the offering and whether or not Wynn Resorts will consummate
the offering. All forward-looking statements in this press release are based on
estimates and assumptions and represent Wynn Resorts’ judgment only as of the
date of this press release. Actual results may differ from current expectations
based on a number of factors including but not limited to changing market
conditions and Wynn Resorts’ ability to complete the offering. Therefore, the
reader is cautioned not to rely on these forward-looking statements. Additional
information concerning potential factors that could affect Wynn Resorts is
included in Wynn Resorts’ Annual Report on Form 10-K for the year ended December
31, 2007 and Wynn Resorts’ other periodic reports filed with the Securities and
Exchange Commission. Wynn Resorts is under no obligation to (and expressly
disclaims any such obligation to) update its forward-looking statements as a
result of new information, future events or otherwise.
CONTACT:
Wynn Resorts, Limited, Las Vegas
Samanta
Stewart, 702-770-7555
investorrelations@wynnresorts.com
SOURCE:
Wynn Resorts, Limited
Exhibit
99.2
Wynn
Resorts Prices Common Stock Offering
LAS
VEGAS—(BUSINESS WIRE)—Nov. 13, 2008— Wynn Resorts, Limited (Nasdaq:WYNN)
announced today that it has priced a public offering of 8,000,000 newly issued
shares of its common stock at a price to the public of $43.50 per
share. The aggregate number of shares offered was increased from the
previously announced 5,000,000. In connection with the offering, Wynn
Resorts has granted to Deutsche Bank Securities Inc. and Banc of America
Securities LLC, who are acting as joint book running managers and underwriters
for the offering, an option to purchase up to an additional 1,200,000 shares of
common stock solely to cover over-allotments, if any. The offering is
expected to close on November 18, 2008, subject to the satisfaction of customary
closing conditions. Wynn Resorts intends to use the proceeds for
general corporate purposes, including repayment of debt.
An
automatic shelf registration statement relating to the common stock was
previously filed with the Securities and Exchange Commission and became
effective upon such filing. This press release shall not constitute an offer to
sell or a solicitation of an offer to buy the common stock nor shall there be
any sale of these shares of common stock in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state or jurisdiction. The
offering of these shares is being made only by means of a prospectus supplement
and related prospectus. A copy of the prospectus relating to the shares may be
obtained by contacting Deutsche Bank Securities Inc. by mail, Attn: Prospectus
Department, 100 Plaza One, Jersey City, NJ 07311, by telephone at (800) 503-4611
or by email: prospectusrequest@list.db.com;
and Banc of America Securities LLC by mail, Attn: Capital Markets Operations,
100 West 33rd Street,
3rd
Floor, New York, NY 10001, or by email: dg.prospectus_distribution@bofasecurities.com.
This
press release contains forward-looking statements about Wynn Resorts, including
those relating to the offering and whether or not Wynn Resorts will consummate
the offering. All forward-looking statements in this press release are based on
estimates and assumptions and represent Wynn Resorts’ judgment only as of the
date of this press release. Actual results may differ from current expectations
based on a number of factors including but not limited to changing market
conditions and Wynn Resorts’ ability to complete the offering. Therefore, the
reader is cautioned not to rely on these forward-looking statements. Additional
information concerning potential factors that could affect Wynn Resorts is
included in Wynn Resorts’ Annual Report on Form 10-K for the year ended December
31, 2007 and Wynn Resorts’ other periodic reports filed with the Securities and
Exchange Commission. Wynn Resorts is under no obligation to (and expressly
disclaims any such obligation to) update its forward-looking statements as a
result of new information, future events or otherwise.
CONTACT:
Wynn Resorts, Limited, Las Vegas
Samanta
Stewart, 702-770-7555
investorrelations@wynnresorts.com
SOURCE:
Wynn Resorts, Limited