UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ________)*
WYNN RESORTS, LIMITED
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
983134 10 7
(CUSIP Number)
----------------------
Tasha D. Nguyen
633 West Fifth Street, 21st Floor
Los Angeles, California 90071
(213) 896-2400
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 30, 2002
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
1
CUSIP No. 983134 10 7
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
Aruze USA, Inc. (1)
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions)
AF (Funds for the acquisition of the Issuer securities were provided by
Aruze Corp., the corporate parent of Aruze USA, Inc.)
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[ ]
6. Citizenship or Place of Organization
Nevada, United States of America
Number of 7. Sole Voting Power: --0--
Shares ----------------------------------------------------------------
Beneficially 8. Shared Voting Power: 49,098,444 (2)
Owned by ----------------------------------------------------------------
Each 9. Sole Dispositive Power: --0--
Reporting ----------------------------------------------------------------
Person With 10. Shared Dispositive Power: 24,549,222 (1)
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
49,098,444 (2)
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
13. Percent of Class Represented by Amount in Row (11)
65.8%
14. Type of Reporting Person
CO
2
(1) Aruze USA, Inc. is a wholly owned subsidiary of Aruze Corp., of which Mr.
Kazuo Okada owns a controlling interest and is its President. The subject
securities were acquired and are owned by Aruze USA, Inc. but may be considered
beneficially owned by Aruze Corp. and Kazuo Okada. Accordingly, Aruze USA, Inc.,
Aruze Corp. and Mr. Okada may be deemed to have shared voting and dispositive
power over the shares which are owned by Aruze USA, Inc.
(2) Includes 24,549,222 shares held by Stephen A. Wynn that are beneficially
owned by the Reporting Person as a result of that certain Stockholders
Agreement, dated as of April 11, 2002 (the "Stockholders Agreement"), by and
among Mr. Wynn, Baron Asset Fund, a Massachusetts business trust ("Baron") and
Aruze USA, Inc. The aggregate percentage of the outstanding Common Stock of the
Issuer, which the Reporting Person beneficially owns is 65.8%. Excluding the
additional shares of Common Stock which the Reporting Person beneficially owns
as a result of the Stockholders Agreement, the Reporting Person directly
beneficially owns 32.9% of the outstanding Common Stock of the Issuer. (See Item
6)
3
CUSIP No. 983134 10 7
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
Aruze Corp. (1)
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions)
N/A
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[ ]
7. Citizenship or Place of Organization
Japan
Number of 7. Sole Voting Power: --0--
Shares ----------------------------------------------------------------
Beneficially 8. Shared Voting Power: 49,098,444 (2)
Owned by ----------------------------------------------------------------
Each 9. Sole Dispositive Power: --0--
Reporting ----------------------------------------------------------------
Person With 10. Shared Dispositive Power: 24,549,222 (1)
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
49,098,444 (2)
13. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
13. Percent of Class Represented by Amount in Row (11)
65.8%
14. Type of Reporting Person
CO
4
(1) Aruze USA, Inc. is a wholly owned subsidiary of Aruze Corp., of which Mr.
Kazuo Okada owns a controlling interest and is its President. The subject
securities were acquired and are owned by Aruze USA, Inc. but may be considered
beneficially owned by Aruze Corp. and Kazuo Okada. Accordingly, Aruze USA, Inc.,
Aruze Corp. and Mr. Okada may be deemed to have shared voting and dispositive
power over the shares which are owned by Aruze USA, Inc.
(2) Includes 24,549,222 shares held by Stephen A. Wynn that are beneficially
owned by the Reporting Person as a result of that certain Stockholders
Agreement, dated as of April 11, 2002 (the "Stockholders Agreement"), by and
among Mr. Wynn, Baron Asset Fund, a Massachusetts business trust ("Baron") and
Aruze USA, Inc. The aggregate percentage of the outstanding Common Stock of the
Issuer, which the Reporting Person beneficially owns is 65.8%. Excluding the
additional shares of Common Stock which the Reporting Person beneficially owns
as a result of the Stockholders Agreement, the Reporting Person directly
beneficially owns 32.9% of the outstanding Common Stock of the Issuer. (See Item
6)
5
CUSIP No. 983134 10 7
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only).
Kazuo Okada (1)
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds (See Instructions)
N/A
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[ ]
8. Citizenship or Place of Organization
Japan
Number of 7. Sole Voting Power: --0--
Shares ----------------------------------------------------------------
Beneficially 8. Shared Voting Power: 49,098,444 (2)
Owned by ----------------------------------------------------------------
Each 9. Sole Dispositive Power: --0--
Reporting ----------------------------------------------------------------
Person With 10. Shared Dispositive Power: 24,549,222 (1)
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
49,098,444 (2)
14. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
[ ]
13. Percent of Class Represented by Amount in Row (11)
65.8%
14. Type of Reporting Person
IN
6
(1) Aruze USA, Inc. is a wholly owned subsidiary of Aruze Corp., of which Mr.
Kazuo Okada owns a controlling interest and is its President. The subject
securities were acquired and are owned by Aruze USA, Inc. but may be considered
beneficially owned by Aruze Corp. and Kazuo Okada. Accordingly, Aruze USA, Inc.,
Aruze Corp. and Mr. Okada may be deemed to have shared voting and dispositive
power over the shares which are owned by Aruze USA, Inc.
(2) Includes 24,549,222 shares held by Stephen A. Wynn that are beneficially
owned by the Reporting Person as a result of that certain Stockholders
Agreement, dated as of April 11, 2002 (the "Stockholders Agreement"), by and
among Mr. Wynn, Baron Asset Fund, a Massachusetts business trust ("Baron") and
Aruze USA, Inc. The aggregate percentage of the outstanding Common Stock of the
Issuer, which the Reporting Person beneficially owns is 65.8%. Excluding the
additional shares of Common Stock which the Reporting Person beneficially owns
as a result of the Stockholders Agreement, the Reporting Person directly
beneficially owns 32.9% of the outstanding Common Stock of the Issuer. (See Item
6)
7
SCHEDULE 13D
ITEM 1. SECURITY AND ISSUER.
Common stock, par value $0.01 per share (the "Common Stock") of Wynn
Resorts, Limited, a Nevada corporation (the "Issuer"), whose executive offices
are located at 3145 Las Vegas Boulevard South, Las Vegas, Nevada 89109.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) Aruze USA, Inc. ("Aruze USA") is a Nevada corporation which has
no primary business aside from its investment in the Issuer. Aruze Corp. is a
Japanese public corporation principally engaged in the manufacture of pachislot
and pachinko machines and video game software. Mr. Kazuo Okada is a Japanese
citizen and is the President and controlling shareholder of Aruze Corp. Mr.
Okada is also the Vice Chairman of the Board of Directors of the Issuer. The
principal business address in the United States for Aruze USA, Aruze Corp. and
Mr. Okada (the "Reporting Persons") is 745 Grier Drive, Las Vegas, Nevada 89119.
In addition to Mr. Okada, Kyoichiro Ohga is a director and Yoshiyuki Shoji is an
executive officer of Aruze USA. The directors of Aruze Corp. are Mr. Okada,
Kyoichiro Ohga, Jun Fujimoto and Kazuna Matsumoto. The executive officers of
Aruze Corp. are Mr. Okada, Kyoichiro and Jun Fujimoto. All of the named officers
and directors are Japanese citizens and share the United States business address
of Aruze USA at 745 Grier Drive, Las Vegas, Nevada 89119.
(d) During the last five years, none of the parties named in (a)-(c)
above have been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years, none of the parties named in (a)-(c)
above have been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which proceeding any of them were
or are subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Aruze Corp. provided Aruze USA with $72,500,000 in cash to acquire
5,576,923 shares of the Issuer pursuant to that certain Purchase Agreement,
dated October 25, 2002 ("Purchase Agreement"), by and between the Issuer and
Aruze USA at the price offered to the public in the Issuer's initial public
offering. Aruze USA's purchase of Common Stock pursuant to the Purchase
Agreement was consummated on October 30, 2002.
ITEM 4. PURPOSE OF TRANSACTION.
The purpose of Aruze USA's ownership of Common Stock of the Issuer is
primarily for investment. Aruze USA's position as a principal stockholder of the
Issuer, in addition to its rights under the Stockholders Agreement described in
Item 6, provides it with considerable influence over the management and policies
of the Issuer and it intends to maintain Kazuo Okada's position as Vice-Chairman
of the Board of Directors of the Issuer
8
to protect its investment. Aruze USA reserves the right to acquire or dispose of
additional shares of Common Stock (or other equity securities or debt securities
of the Issuer), depending on market conditions and other factors, and to take
any other action it deems necessary or desirable should any event, development
or change occur that, in its opinion, could affect its investment in the Issuer.
Except as qualified by the foregoing, the Reporting Persons have no plans or
proposals which relate to or would result in any of the actions enumerated in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(c) On the date hereof, the Reporting Persons have the shared power
to vote or to direct the vote and to dispose or to direct the disposition of
24,549,222 shares of Common Stock of the Issuer owned by Aruze USA. Such
24,549,222 shares include 18,972,299 shares of Common Stock of the Issuer which
were acquired by Aruze USA from the Issuer as a result of the contribution of
its membership interest in Valvino Lamore, LLC, a Nevada limited liability
company ("Valvino"), to the Issuer on September 24, 2002. In the contribution,
approximately 189.7 shares of Issuer Common Stock were issued to Aruze USA in
exchange for each common share of Valvino membership interest contributed. Aruze
USA acquired an additional 5,576,923 shares of Common Stock from the Issuer on
October 30, 2002 pursuant to the Purchase Agreement for $13.00 per share, which
was the price offered to the public in the Issuer's initial public offering.
As a result of entering into the Stockholders Agreement with Stephen A.
Wynn (see Item 6), Aruze USA possesses shared power to vote or direct the vote
of, and thus beneficially owns, an additional 24,549,222 shares of Common Stock
of the Issuer held by Mr. Wynn.
Mr. Wynn is a United States citizen with his business address at 3145
Las Vegas Boulevard South, Las Vegas, Nevada 89109. To the knowledge of the
Reporting Persons, Mr. Wynn directly beneficially owns 24,549,222 shares of
Common Stock, or 32.9% of the outstanding Common Stock of the Issuer.
As described in Item 6, under the Stockholders Agreement, Aruze USA and
Mr. Wynn have agreed to vote their shares of the Issuer's Common Stock for a
slate of directors of the Board of Directors of the Issuer, a majority of which
will be designated by the Mr. Wynn, of which at least two will be independent
directors, and the remaining members of which will be designated by Aruze USA.
Aruze USA, Aruze Corp. and Kazuo Okada, on the one hand, and Mr. Wynn, on the
other hand, are a "group" under Rule 13d-5 under the Securities Exchange Act of
1934, as amended, solely because of the voting arrangement with respect to the
election of directors under the Stockholders Agreement. Other than the
Stockholders Agreement described in Item 6, the Reporting Persons and Mr. Wynn
do not have any other arrangement or understanding with respect to the
acquisition, holding, voting or disposition of equity securities of the Issuer.
The aggregate percentage of the outstanding Common Stock of the Issuer,
which the Reporting Persons beneficially own, including the shares of Common
Stock which the Reporting Persons beneficially
9
own as a result of the Stockholders Agreement, is 65.8%. Excluding the
additional shares of Common Stock that the Reporting Persons beneficially own as
a result of the Stockholders Agreement, the Reporting Persons directly
beneficially own 32.9% of the outstanding Common Stock of the Issuer.
All percentages are based on 74,615,000 shares of Common Stock
outstanding as of October 30, 2002, as reported in the Issuer's 424(b)(4)
prospectus, filed with the Securities and Exchange Commission on October 29,
2002.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
PURCHASE AGREEMENT
------------------
Pursuant to the Purchase Agreement, Aruze USA acquired 5,576,923 shares
of the Issuer for $13.00 per share pursuant to the registration statement for
the Issuer's initial public offering, which was the price offered to the public
in the Issuer's initial public offering.
STOCKHOLDERS AGREEMENT
----------------------
Pursuant to the Stockholders Agreement, Aruze USA and Mr. Wynn have
agreed to vote their shares of the Issuer's Common Stock for a slate of
directors of the Board of Directors of the Issuer, a majority of which will be
designated by Mr. Wynn, of which at least two will be independent directors, and
the remaining members of which will be designated by Aruze USA.
In addition, under the Stockholders Agreement, the parties to that
agreement granted each other a right of first refusal on their respective shares
of Common Stock of the Issuer. Under this right of first refusal, if any
stockholder party to the Stockholders Agreement wishes to transfer any of his or
its shares of Common Stock to anyone other than a permitted transferee, and has
a bona fide offer from any person to purchase such shares, the stockholder must
first offer the shares to the other parties to the Stockholders Agreement on the
same terms and conditions as the bona fide offer. In addition to this right of
first refusal, Aruze USA and Mr. Wynn also granted each other and Baron a
tag-along right on their respective shares of Common Stock. Under this tag-along
right, Aruze USA and Mr. Wynn, before transferring his or its shares of the
Issuer to any person other than a permitted transferee, must first allow the
other parties to the agreement to participate in such transfer on the same terms
and conditions.
The Stockholders Agreement also provides that, upon the institution of
a bankruptcy action by or against a party to the Stockholders Agreement, the
other parties to the agreement will be given an option to purchase the bankrupt
stockholder's shares of Issuer Common Stock at a price to be agreed upon by the
bankrupt stockholder and the other stockholders, or, if a price cannot be agreed
upon by such stockholders, at a price equal to the fair market value of the
shares. In addition, under the Stockholders Agreement, if there is a direct or
indirect change of control of any party to the agreement, other than Baron, the
other parties to the agreement have the option to purchase the shares of Common
Stock held
10
by the party undergoing the change in control. Under the Stockholders
Agreement, a stockholder may assign these options to the Issuer.
BUY-SELL AGREEMENT
------------------
Aruze USA, Aruze Corp., Mr. Okada, Mr. Wynn and the Issuer, which will
be regulated by the Nevada gaming authorities, have entered into certain
arrangements regarding the Common Stock of the Issuer held by each such person
or entity. Pursuant to that certain Buy-Sell Agreement, dated as of June 13,
2002 (the "Buy-Sell Agreement"), by and among Mr. Wynn, Kazuo Okada, Aruze USA
and Aruze Corp., if any gaming application of Aruze USA, Aruze Corp. or Kazuo
Okada concerning Aruze USA's ownership of Common Stock is denied by Nevada
gaming authorities or requested to be withdrawn or is not filed within 90 days
after the filing of the Issuer's application, Mr. Wynn may elect to purchase the
shares of Common Stock owned by Aruze USA. According to the Buy-Sell Agreement,
the total purchase price of the shares of Common Stock will be the lesser of (1)
the fair market value of the shares of Common Stock on the day Mr. Wynn serves
Aruze USA notice of his election to purchase the shares or (2) the aggregate
amount of cash contributed to Valvino by Aruze USA, minus any distributions by
Valvino or the Issuer to Aruze USA, plus two percent interest, compounded
annually. Pursuant to the Buy-Sell Agreement, Mr. Wynn may pay this purchase
price with a promissory note.
EXERCISE AGREEMENT
------------------
In addition, under that certain Agreement, dated as of June 13, 2002
(the "Exercise Agreement"), between the Mr. Wynn and the Issuer, if Mr. Wynn
chooses not to exercise his right under the Buy-Sell Agreement to purchase the
shares of Common Stock owned by Aruze USA, the Issuer has the right to require
Mr. Wynn to exercise such right.
The foregoing descriptions of the Purchase Agreement, Stockholders
Agreement, Buy-Sell Agreement and Exercise Agreement are not, and do not purport
to be, complete and are qualified in their entirety by reference to the Purchase
Agreement, Stockholders Agreement, Buy-Sell Agreement and Exercise Agreement,
copies of which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4 hereto and
incorporated herein in their entirety by this reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit Description
10.1 Purchase Agreement, dated October 25, 2002, by and between
Wynn Resorts, Limited and Aruze USA, Inc.
10.2 Stockholders Agreement, dated as of April 11, 2002, by
and among Stephen A. Wynn, Baron Asset Fund and Aruze USA,
Inc. (1)
10.3 Buy-Sell Agreement, dated as of June 2002, by and among
Stephen A. Wynn, Kazuo Okada, Aruze USA, Inc. and Aruze Corp.
11
10.4 Agreement, dated as of June 13, 2002, between Stephen A.
Wynn and Wynn Resorts, Limited (2)
(1) Incorporated by reference to the Registration Statement on Form S-1 filed by
Wynn Resorts, Limited on June 17, 2002.
(2) Incorporated by reference to Amendment No. 1 to the Registration Statement
on Form S-1 filed by Wynn Resorts, Limited on August 20, 2002.
SIGNATURES
After reasonable inquiry and to the best of the knowledge and belief of
the undersigned, it certifies that this statement is true, complete and correct.
1) ARUZE USA, INC.
/s/ KAZUO OKADA
---------------------------
By: Kazuo Okada
Its: Chairman of the Board
2) ARUZE CORP.
/s/ KAZUO OKADA
---------------------------
By: Kazuo Okada
Its: President
3) KAZUO OKADA
/s/ KAZUO OKADA
---------------------------
Kazuo Okada, Individually
Dated: November 12, 2002
12
EXHIBIT INDEX
Exhibit Description
10.1 Purchase Agreement, dated October 25, 2002, by and between
Wynn Resorts, Limited and Aruze USA, Inc.
10.2 Stockholders Agreement, dated as of April 11, 2002, by and
among Stephen A. Wynn, Baron Asset Fund and Aruze USA,
Inc. (1)
10.3 Buy-Sell Agreement, dated as of June 2002, by and among
Stephen A. Wynn, Kazuo Okada, Aruze USA, Inc. and Aruze Corp.
10.4 Agreement, dated as of June 13, 2002, between Stephen A.
Wynn and Wynn Resorts, Limited (2)
(1) Incorporated by reference to the Registration Statement on Form S-1 filed by
Wynn Resorts, Limited on June 17, 2002.
(2) Incorporated by reference to Amendment No. 1 to the Registration Statement
on Form S-1 filed by Wynn Resorts, Limited on August 20, 2002.
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EXHIBIT 10.1
PURCHASE AGREEMENT
October 25, 2002
To Aruze USA, Inc.,
a Nevada corporation
Ladies and Gentlemen:
Wynn Resorts, Limited, a Nevada corporation (the "Company"), proposes to
issue and sell to Aruze USA, Inc., a Nevada corporation (the "Purchaser"), five
million five hundred seventy six thousand nine hundred twenty three (5,576,923)
shares of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"). Terms not otherwise defined herein shall have the same meanings set
forth in the Underwriting Agreement, dated as of October 25, 2002, by and among
the Company and Deutsche Bank Securities Inc., Bear, Stearns & Co. Inc., Banc of
America Securities LLC, as Representatives of the Several Underwriters set forth
in Schedule I thereto (the "Underwriters"), as such Underwriting Agreement may
be amended from time to time (the "Underwriting Agreement"). The Common Stock to
be purchased by the Purchaser hereunder will be purchased pursuant to an
offering by the Company under the Registration Statement.
1. PURCHASE, SALE AND DELIVERY OF THE COMMON STOCK. On the basis of the
representations, warranties, covenants and agreements herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Purchaser and the Purchaser agrees to purchase from the Company five
million five hundred seventy six thousand nine hundred twenty three (5,576,923)
shares of the Common Stock (the "Purchased Shares") at a purchase price of $13
per share (the "Per Share Price").
Delivery of the payment of the purchase price for the Purchased Shares
shall be made at the place determined in accordance with Section 2 of the
Underwriting Agreement. Such delivery and payment shall be made at the Closing
Date as set forth in such Section 2. Delivery of the Purchased Shares shall be
made to the Purchaser, subject to Section 4 hereof, against payment by the
Purchaser of the purchase price for the Purchased Shares to the order of the
Company by certified or official bank check payable in New York Clearing House
funds or by wire transfer of immediately available funds to an account
designated by the Company.
2. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of the
Purchaser to purchase and pay for the Purchased Shares shall be subject only to
the condition that the Closing under the Underwriting Agreement shall have
occurred concurrently with the closing under this Agreement.
3. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall become
effective upon the effectiveness of the Underwriting Agreement, and shall
terminate solely upon the termination of the Underwriting Agreement.
4. BUY-SELL AGREEMENT. It is acknowledged and agreed that (i) the
Purchased Shares shall be subject to that certain Buy-Sell Agreement, dated as
of June 13, 2002, by and among Stephen A. Wynn, Kazuo Okada, the Purchaser, and
Aruze Corp., a Japanese public corporation (the "Buy-Sell Agreement"), and (ii)
pursuant to Section 4 of the Buy-Sell Agreement, the Purchased Shares shall be
held in escrow by Stephen A. Wynn and, concurrently with the closing under this
Agreement, the Purchaser shall deliver to Stephen A. Wynn a Stock Assignment
Separate From Certificate with respect to the Purchased Shares. Under the
Buy-Sell Agreement, upon a purchase and sale of any Shares (as defined therein),
in determining the Investment Amount (as defined therein), appropriate
adjustments shall be made to reflect the amount of cash paid hereunder for the
Purchased Shares, any distributions made hereafter by the Company in respect of
the Purchased Shares, and the number of the Purchased Shares.
5. CONSENT AND WAIVER. Reference is hereby made to: (i) that certain
Purchase Agreement, dated concurrently herewith, between the Company and Stephen
A. Wynn, pursuant to which, subject to certain conditions, Stephen A. Wynn or
his assignee is to purchase five million five hundred seventy six thousand nine
hundred twenty three (5,576,923) shares of Common Stock at the Per Share Price;
(ii) that certain Purchase Agreement, dated concurrently herewith, among the
Company, Baron Asset Fund, a Massachusetts business trust, on behalf of the
Baron Growth Fund Series, and Baron Asset Fund, a Massachusetts business trust,
on behalf of the Baron Small Cap Fund Series, pursuant to which, subject to
certain conditions, Baron Asset Fund, on behalf of the Baron Growth Fund Series
and on behalf of the Baron Small Cap Fund Series, is to purchase seven hundred
thousand (700,000) shares of Common Stock at the Per Share Price and three
hundred thousand (300,000) shares of Common Stock at the Per Share Price,
respectively; and (iii) that certain Purchase Agreement, dated concurrently
herewith, between the Company and Zenith Insurance Company, a California
corporation, pursuant to which, subject to certain conditions, Zenith Insurance
Company is to purchase one million (1,000,000) shares of Common Stock at the Per
Share Price (collectively, the "Other Stock Purchase Transactions"). The
Purchaser hereby consents to the Other Stock Purchase Transactions and waives
any pre-emptive or other rights to purchase the equity interests contemplated to
be issued in the Other Stock Purchase Transactions.
6. AMENDMENT. This Agreement may be amended only with the written consent
of the Company, the Purchaser and each of the Underwriters; provided, however,
that Section 4 hereof may be amended with (and only with) the written consent of
each of the parties to the Buy-Sell Agreement.
7. PARTIES. Except as set forth in this Section, this Agreement shall
inure solely to the benefit of, and shall be binding upon, the Company and the
Purchaser and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision therein
contained. The Purchaser shall have the right to assign the Purchaser's right to
purchase shares of Common Stock under this Agreement to the extent necessary in
order for the Purchaser and the Company not to be required to make filings, if
required, with the Federal Trade Commission and the Department of Justice of
notification forms under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, in connection with the purchase of shares of Common Stock
purchased hereunder.
2
Notwithstanding anything to the contrary in the foregoing, it is expressly
agreed that: (i) the Underwriters are intended to be third party beneficiaries
of this Agreement, except for Sections 4 and 5 hereof, and the Underwriters
shall, except to that extent, be entitled to bring an action for damages or for
specific enforcement of this Agreement in the event of any breach of this
Agreement by either the Company or the Purchaser; (ii) Stephen A. Wynn, Kazuo
Okada, and Aruze Corp., a Japanese public corporation, by their signatures
immediately following the signature of the Purchaser below, are acknowledging
and agreeing to the provisions of Sections 4 and 6 hereof, and they shall be
treated as parties hereto, and this Agreement shall inure to their benefit, to
that extent; and (iii) the parties to the Other Stock Purchase Transactions are
intended to be third party beneficiaries of Section 5 of this Agreement.
8. CONSTRUCTION. This Agreement shall be construed in accordance with the
internal laws of the State of Nevada.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
3
Very truly yours,
WYNN RESORTS, LIMITED,
a Nevada corporation
By: /s/ RONALD KRAMER
-------------------------------
Name:
Title:
Accepted as of the date first above written:
ARUZE USA, INC.,
a Nevada corporation
By:/s/ KAZUO OKADA
--------------------------------
Name:
Title: Chairman of the Board
By their signatures below, the following parties hereby acknowledge and agree,
as of the date first above written, to the provisions of Sections 4 and 6 of
this Agreement and hereby join in this Agreement to that extent:
/s/ STEPHEN A. WYNN
-------------------------------
Stephen A. Wynn
/s/ KAZUO OKADA
-------------------------------
Kazuo Okada
ARUZE CORP.,
a Japanese public corporation
By:/s/ KAZUO OKADA
-------------------------------
Name:
Title: President
4
EXHIBIT 10.3
BUY-SELL AGREEMENT
This BUY-SELL AGREEMENT (the "Agreement"), dated as of this 13th day of
June, 2002, is entered into by and among Stephen A. Wynn, an individual
("Wynn"), Kazuo Okada, an individual ("Okada"), Aruze USA, Inc., a Nevada
corporation ("Aruze"), and Aruze Corp., a Japanese public corporation ("Aruze
Parent").
W I T N E S S E T H:
WHEREAS, the members of Valvino Lamore, LLC, a Nevada limited liability
company (the "LLC"), have agreed to contribute their interests in the LLC to
Wynn Resorts, Limited, a Nevada corporation (the "Company"), in exchange for
Shares in the Company (the "Contribution"); and
WHEREAS, the parties desire to enter into this Agreement to facilitate
the financing of the Company and help resolve potential future issues related to
the Company's ability to obtain gaming licenses and comply with gaming laws.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
-----------
(a) "Closing Prices" means, with respect to each Share, (i) the last
reported sale price regular way or, in the case no such sale takes
place on such day, the average of the closing bid and asked prices
regular way, on the principal national securities exchange on which
such class or series of Shares is listed or admitted for trading, or
(ii) if such class or series of Shares is not listed or admitted for
trading on any national securities exchange, the last reported sale
price or, in case no such sale takes place on such day, the average
of the highest reported bid and the lowest reported asked quotation
for such class or series of Shares, for all such purposes as
reported by Bloomberg Financial Markets or The Wall Street Journal
if Bloomberg Financial Markets is no longer reporting such
information, or a similar service if Bloomberg Financial Markets and
The Wall Street Journal are no longer reporting such information.
(b) "Fair Market Value" means, with respect to each Share of any class
or series for any Wynn Notice Date (as defined in Section 3(a)), (i)
the average of the daily Closing Prices for the twenty consecutive
trading days prior to such Wynn Notice Date, or (ii) if on such Wynn
Notice Date the Shares of such class or series of Shares are not
listed or admitted for trading on any national securities exchange
and are not quoted on Nasdaq or any similar service, the fair market
value, as determined by a nationally recognized valuation firm
mutually acceptable to Wynn and Aruze.
(c) "Investment Amount" means, with respect to each Share of any class
or series for any Wynn Notice Date, (i) the aggregate amount of cash
contributed to the LLC by Aruze, reduced by any distributions by the
LLC or
1
the Company to Aruze, plus interest, compounded annually, at
the rate of two percent (2%) per annum on the balance of such amount
from time to time, divided by (ii) the total number of Shares issued
to Aruze upon the contribution of its interest in the LLC to the
Company, as appropriately adjusted for any subsequent stock
dividend, stock split, reverse stock split, recapitalization,
consolidation, or similar event.
(d) "Licensing Event" means (i) a recommendation by the Nevada State
Gaming Control Board to the Nevada Gaming Commission that the
applications of Aruze Parent, Aruze, and/or Okada be denied, or that
Aruze Parent, Aruze, and/or Okada be found unsuitable; (ii) a vote
by the Nevada Gaming Commission to deny the applications of Aruze
Parent, Aruze, and/or Okada, or to find Aruze Parent, Aruze, and/or
Okada unsuitable; (iii) a request for withdrawal of applications by
Aruze Parent, Aruze, and/or Okada in respect of the Company; or (iv)
failure of Aruze Parent, Aruze, and/or Okada to file all necessary
applications in respect of the Company within 90 days after the
filing of the application by the Company.
(e) "Operating Agreement" means that certain Amended and Restated
Operating Agreement of the LLC, effective as of October 3, 2000, as
amended and/or restated from time to time.
(f) "Second Amendment" means that certain Second Amendment, dated
February 18, 2002, to the Operating Agreement.
(g) "Shares" means the shares of capital stock of the Company.
(h) "Stockholders Agreement" means that certain Stockholders Agreement,
dated as of April 11, 2002, by and among the members of the LLC, as
it may be amended and/or restated from time to time.
(i) "Third Amendment" means that certain Third Amendment, effective as
of April 11, 2002, to the Operating Agreement.
2. GAMING MATTERS. If required by any gaming authority, Aruze, Aruze Parent,
and Okada shall, and shall cause their respective related parties to,
promptly submit such personal history and financial history, cooperate in
any investigation, and diligently seek a finding of suitability or other
gaming registration or license. Aruze, Aruze Parent, or Okada, as the
case may be, shall keep Wynn informed, in advance, of all proceedings in
which any of them or their related parties are engaged before a gaming
authority, including without limitation by providing Wynn with copies of
any correspondence from or to any gaming authority and any written
materials to be submitted in connection with such proceedings.
3. Purchase and Sale of Aruze's Shares.
(a) Upon the occurrence of a Licensing Event, Aruze shall provide prompt
written notice thereof to Wynn. Upon the occurrence of a Licensing
Event, Wynn or his designee shall have until 60 days after the date
of Aruze's notice
2
to Wynn of the Licensing Event, to elect by written notice to Aruze
to purchase some or all of Aruze's Shares for a price equal to the
lesser of (i) the Fair Market Value of the purchased Shares as of
the date of the Wynn notice to Aruze (the "Wynn Notice Date"), or
(ii) the Investment Amount of the purchased Shares as of the Wynn
Notice Date. The purchase price shall be paid, in full, by
delivering to Aruze a promissory note, in the form attached hereto
as Exhibit A, duly executed by the purchaser. The purchase and sale
of the Shares shall take place on a date 15 days after the Wynn
Notice Date.
(b) The dates provided in this Section 3 for the purchase and sale of
Shares shall be adjusted by Wynn if necessary to comply with any
applicable securities laws, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or any other applicable law.
(c) Each of Aruze, Aruze Parent, and Okada hereby represents and
warrants to Wynn that Aruze will deliver good and marketable title
to any Shares purchased hereunder, free and clear of all liens,
security interests, or other encumbrances of any nature whatsoever.
4. ESCROW. All Shares owned by Aruze, Aruze Parent, Okada, or any transferee
of any of them shall be held in escrow by Wynn to secure their
obligations hereunder, together with executed stock powers in blank and
such other documents as may be required to effect the sale of Shares
contemplated hereunder.
5. TRANSFEREE BOUND BY AGREEMENT. If Aruze, or its transferee, proposes to
transfer any of its Shares, the proposed transferee shall be required, as
a condition of such transfer, to agree in writing to assume all
obligations of the transferor hereunder; provided, however, that any such
transfer shall not release Aruze, Aruze Parent, Okada, or any such
transferee from any liability hereunder.
6. EFFECTIVE TIME; TERMINATION OF PRIOR AGREEMENTS. This Agreement shall
become effective at the time of the Contribution. At such time the Second
Amendment, Paragraph 20 of the Third Amendment, and Section 11 of the
Stockholders Agreement are hereby terminated and shall be of no further
force or effect. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
7. MISCELLANEOUS.
-------------
(a) CONFLICTS. In the event of a conflict between the terms and
conditions of this Agreement and the terms and conditions of the
Operating Agreement or the Stockholders Agreement, the terms and
conditions of this Agreement shall control.
(b) FURTHER ASSURANCES. Each party hereto agrees to cooperate with the
other parties by executing such other documents and taking such
other actions as may be necessary or appropriate to carry out the
provisions of this Agreement.
3
(c) AMENDMENTS. This Agreement may not be amended except by a written
agreement executed by all of the parties.
(d) LEGEND. Wynn and Aruze agree to cause the Company to imprint on all
certificates representing Shares owned by Aruze or any transferee
the following restrictive legend (in addition to any other legend
required by applicable laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A BUY-SELL AGREEMENT DATED AS OF JUNE 13, 2002,
WHICH PLACES CERTAIN RESTRICTIONS ON, AND IMPOSES CERTAIN
OBLIGATIONS IN CONNECTION WITH, THE TRANSFER AND OWNERSHIP OF THE
SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH
SHARES SHALL BE DEEMED TO HAVE AGREED TO AND SHALL BECOME BOUND BY
ALL THE PROVISIONS OF SUCH BUY-SELL AGREEMENT IN THE SAME MANNER AS
THE TRANSFEROR OF SUCH SHARES. A COPY OF SUCH BUY-SELL AGREEMENT
WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS."
(e) TRANSFERS IN VIOLATION VOID. Any transfer of any Shares in violation
of this Agreement shall be null and void ab initio, and no effect
shall be given to any such transfer.
(f) NOTICES. Any and all notices, requests, claims, demands and other
communications by any party hereto to any other party,
required or desired to be given hereunder, shall be in writing and
shall be deemed validly given and received (i) if served personally,
(ii) if delivered by a nationally recognized overnight courier
service, such as Federal Express, providing proof of delivery, (iii)
if sent by telegram, telex, or telecopy, or (iv) three days after it
is posted with the United States Postal Service if it is sent via
certified mail, return receipt requested, postage prepaid. All
communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Wynn: Mr. Stephen A. Wynn
c/o Wynn Resorts, Limited
3145 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Facsimile: 702.791.0167
4
If to Aruze, Aruze Parent, or Okada: Aruze USA, Inc.
745 Grier Drive
Las Vegas, Nevada 89119
Facsimile: 702.361.3407
Attention: Koiki Ohba
With a copy to: Holland & Knight LLP
633 West Fifth Street, 21st Floor
Los Angeles, California 90071
Facsimile: 213.896.2450
Attention: Tasha D. Nguyen, Esq.
or to such other address as the party to whom notice is given may
have previously furnished to the others in writing in the manner set
forth above.
(g) SEVERABILITY. If any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any
other provision or portion of any provision in this Agreement.
(h) SPECIFIC PERFORMANCE. Each of the parties acknowledges that a breach
of this Agreement will cause the other parties hereto to sustain
damages for which they would not have an adequate remedy at law for
money damages, and therefore each of the parties hereto agrees that
the parties shall be entitled to the remedy of specific performance
and other equitable relief.
(i) GOVERNING LAW. The laws of the State of Nevada applicable to
contracts made in that State, without giving effect to its conflict
of law rules, shall govern the validity, construction, performance,
and effect of this Agreement.
(j) JURISDICTION. Each party hereby irrevocably submits to the exclusive
jurisdiction and venue of the state courts of the State of Nevada in
any proceeding arising in connection with this Agreement. Each party
hereto hereby waives any right to a trial by jury in connection with
any such action, suit or proceeding.
(k) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This
Agreement shall not be effective as to any party hereto until such
time as this Agreement or a counterpart thereof has been executed
and delivered by each party hereto.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Wynn, Okada, and a duly authorized officer of each of Aruze and Aruze Parent
on the day and year first written above.
/s/ STEPHEN A. WYNN
-------------------------------
Stephen A. Wynn
/s/ KAZUO OKADA
-------------------------------
Kazuo Okada
ARUZE USA, INC.
By: /s/ KAZUO OKADA
-------------------------------
Name: Kazuo Okada
-------------------------------
Title: Chairman of the Board
-------------------------------
ARUZE CORP.
By: /s/ KAZUO OKADA
-------------------------------
Name: Kazuo Okada
-------------------------------
Title: President
-------------------------------
6
EXHIBIT A
PROMISSORY NOTE
$[ ] Las Vegas, Nevada
_____________ ___, 20___
FOR VALUE RECEIVED, ________________ (the "Maker") hereby absolutely and
unconditionally promises to pay to Aruze USA, Inc. (the "Holder"), prior to or
on __________ __[ninth anniversary of delivery], 20__, in immediately available
funds, the principal amount of $[ ] or, if less, the aggregate principal amount
of this Note outstanding on such date, and to pay interest on the unpaid
principal amount hereof, in immediately available funds, annually in arrears on
each anniversary of the date hereof (or the next succeeding business day), at
the rate of 2% per annum. Notwithstanding any other provision hereof, in no
event shall this Note bear interest at a rate exceeding the maximum rate
permitted by applicable law.
This Note evidences the purchase price payable by the Maker to the Holder
pursuant to a Buy-Sell Agreement entered into by and among Stephen A. Wynn, an
individual, Kazuo Okada, an individual, Aruze USA, Inc., a Nevada corporation,
and Aruze Corp., a Japanese public corporation, dated as of June 13, 2002. This
Note may be prepaid in whole or in part at any time without penalty or premium.
No delay or omission on the part of the Holder or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or any
other right of the Holder or of such holder, nor shall any delay, omission or
waiver of any one occasion be deemed a bar to or waiver of the same or any other
right or any other occasion. The Maker and every endorser and guarantor of this
Note regardless of the time, order or place of signing hereby waives
presentment, demand, protest and notice of every kind, and assents to any
extension or postponement of the time for payment or any other indulgence.
Holder and Maker shall each bear their own costs and expenses in
connection with this Note, including legal and other professional fees and
expenses.
THIS NOTE SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA (WITHOUT REFERENCE TO CONFLICTS
OF LAW).
This Note will be binding upon Maker and his successors and assigns, and
inure to the benefit of Holder and its successors and assigns.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed by its
duly authorized officer to take effect as of the date first written above.
___________________________
By:_____________________