Exhibit
1.1
EXECUTION VERSION
Las Vegas Sands Corp.
10% Series A Cumulative Perpetual Preferred Stock (Liquidation Preference $100 per preferred share)
and Warrants to Purchase Approximately 86,605,173 Shares of Common Stock
and
181,818,182 Shares of Common Stock
Underwriting Agreement
November 10, 2008
Goldman, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Las Vegas Sands Corp., a Nevada corporation (the Company), proposes, subject to the terms
and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the
Underwriters) an aggregate of 5,196,300 shares of 10% Series A preferred stock, liquidation
preference $100 per share (the Series A Preferred Stock), 5,196,300 warrants (the Warrants) to
purchase an aggregate of approximately 86,605,173 shares of common stock, par value $0.001 per
share (the Common Stock and, together with the Series A Preferred Stock, the Stock) of the
Company, and an aggregate of 181,818,182 shares of Common Stock (the Common Shares) of the
Company. The Series A Preferred Stock and the Warrants are being sold as units (the Units) that
are immediately separable and will be issued separately. The terms of the Series A Preferred Stock
shall be set forth in the Certificate of Designations of Preferred Stock for such series (the
Certificate of Designations) of the Company. The Warrants are to be issued pursuant to a Warrant
Agreement (the Warrant Agreement) to be dated the First Time of Delivery (as defined below)
between the Company and U.S. Bank National Association, as warrant agent (the Warrant Agent).
Shares of the Common Stock issuable upon exercise of the Warrants are collectively referred to
herein as the Warrant Shares. The Units and the Common Shares are collectively referred to
herein as the Firm Securities. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from the Company up to
18,181,818 additional shares of Common Stock upon the terms and conditions set forth below (the
Optional Securities). The Firm Securities and the Optional Securities are collectively referred
to herein as the Securities.
1
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined under Rule 405 under the
Securities Act of 1933, as amended (the Act) on Form S-3 (File No. 333-155100) in respect
of the Securities and the Common Stock issuable upon exercise of the Warrants has been filed
with the United States Securities and Exchange Commission (the Commission) not earlier
than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending
the effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or to the Companys knowledge after
reasonable investigation threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the Basic Prospectus; any preliminary prospectus (including the Basic
Prospectus and any preliminary prospectus supplement) relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act is hereinafter called a Preliminary
Prospectus; the various parts of such registration statement, including all exhibits
thereto but excluding any Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part of the registration
statement was deemed effective, are hereinafter collectively called the Registration
Statement; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the Pricing
Prospectus; the form of the final prospectus (consisting of the Basic Prospectus and the
Final Prospectus Supplement) relating to the Securities filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called
the Prospectus; any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of such prospectus; any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act and any documents filed under the Securities Exchange Act of 1934, as amended
(the Exchange Act), and incorporated therein by reference, in each case after the date of
the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any issuer free writing prospectus as defined
in Rule 433 under the Act relating to the Securities is hereinafter called an Issuer Free
Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects
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with the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided
,
however
, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 10:00 p.m. (Eastern
time) on the date of this Agreement. The Pricing Prospectus, as supplemented by the
information set forth in Schedule III hereto, taken together (collectively, the Pricing
Disclosure Package)), as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any 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 this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; and
each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not conflict with
the information contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any 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 this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions that have been corrected in a
subsequent filing that has been incorporated by reference in the Pricing Prospectus or the
Prospectus or that have been made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly
for use therein; and no such documents were filed with the Commission since the Commissions
close of business on the business day immediately prior to the date of this Agreement and
prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;
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(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, not misleading, and as to the Prospectus, as of the applicable filing
date thereof and any amendment or supplement thereto, contain an untrue statement of a
material fact or 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 this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein;
(f) Subsequent to the respective dates as to which information is given in the
Registration Statement and the Pricing Prospectus, except as set forth in the Pricing
Prospectus, neither the Company nor any of its subsidiaries has sustained any material loss
or interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth in or contemplated by the Pricing Prospectus; and,
since the respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, there has not been any change in the capital stock or any
increase in the long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development that could reasonably be expected to result in a material
adverse change, in or affecting the general affairs, management, business, properties,
prospects or condition (financial or other), stockholders equity or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus (any such change or event, a Material Adverse
Effect);
(g) The Company and its subsidiaries have good and marketable title in fee simple to
all material real property and good and marketable title to all material personal property
owned by them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Pricing Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are described in the Pricing
Prospectus or are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada with power and authority (corporate and
other) to own its properties and conduct its business as described in the Pricing Prospectus
and has been duly qualified to do business as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such qualification, except
where the failure to be so qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse
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Effect; and each of Las Vegas Sands, LLC, Venetian Casino Resort, LLC, Interface
Group-Nevada, Inc., Palazzo Condo Tower, LLC, Sands Pennsylvania, Inc., Sands Bethworks
Gaming, LLC, Venetian Venture Development, LLC, Venetian Venture Development Intermediate I,
Venetian Venture Development Intermediate II, Venetian Venture Development Intermediate
Limited, Venetian Macau Limited, Venetian Cotai Limited, Venetian Orient Limited, Cotai
Waterjets (Macau) Limited, Cotai Waterjets (HK) Limited, CotaiJet Holdings (II) Limited and
Marina Bay Sands Pte. Ltd. (collectively, the Material Subsidiaries), each of which is a
subsidiary of the Company, has been duly incorporated or organized and is validly existing
as a corporation or limited liability company, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or formation, as the case may be; and each of
the subsidiaries of the Company, other than the Material Subsidiaries, has been duly
incorporated or organized and is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be, except where the failure to be in good
standing would not have a Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform in all
material respects to the description of the Stock contained in the Pricing Prospectus and
the Prospectus; and all of the issued shares of capital stock or other ownership interests,
as the case may be, of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except as otherwise set forth in the
Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(j) The Common Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Common Shares contained in the
Pricing Prospectus and the Prospectus;
(k) The Series A Preferred Stock to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable and will conform in all material respects to the description
of the Series A Preferred Stock contained in the Pricing Prospectus and the Prospectus;
(l) Prior to the date hereof, neither the Company nor any of its affiliates has taken
any action which is designed to or which has constituted or which might have been expected
to cause or result in stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
(m) Upon filing of the Certificate of Designations, the issuance and sale of the
Securities and the compliance by the Company with this Agreement and the Warrant Agreement
and the consummation of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, (i) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
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party or by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is subject, (ii) the
provisions of the Certificate of Incorporation or By-laws of the Company or (iii) assuming
the accuracy of the representations and warranties and compliance with the covenants
contained herein by the Underwriters, any statute applicable to the Company or any order,
rule or regulation applicable to the Company of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their properties
except, in the case of clauses (i) and (iii), for such conflicts, breaches, violations or
defaults as would not have a Material Adverse Effect; and, assuming the accuracy of the
representations and warranties and compliance with the covenants contained herein by the
Underwriters, the filing of the Certificate of Designations, and compliance by the Company
with its obligations under Section 10 of the Warrant Agreement, no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required by the Company or its subsidiaries for the issue and
sale of the Securities or the consummation by the Company of the transactions contemplated
by this Agreement or the Warrant Agreement, except filings related to the transactions
contemplated hereby on Schedule 13D or 13G, Form 4 and Form 8-K with the Commission and such
consents, approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or foreign securities laws, as applicable, in
connection with the purchase and distribution of the Securities by the Underwriters and such
consents, approvals, authorizations, orders, registrations and qualifications that have been
obtained and are in full force and effect as of the date hereof;
(n) Neither the Company nor any of its subsidiaries is (i) in violation of its
Certificate of Incorporation or By-laws or limited liability company agreement, as
applicable, or (ii) in default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except in the case of clause (ii) as would not have a Material
Adverse Effect
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption Description of Capital Stock, Description of Series A Cumulative Perpetual
Preferred Stock and Description of Warrants insofar as they purport to constitute a
summary of the terms of the Stock
,
and under the caption Certain U.S. Federal Income Tax
Considerations, as set forth in the Pricing Prospectus and the Prospectus, and
Business-Regulation and Licensing, incorporated by reference into the Pricing Prospectus
from the Companys Annual Report on Form 10-K for the year ended December 31, 2007, insofar
as they purport to describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which now
have or could reasonably be expected in the future to have a Material Adverse Effect and, to
the Companys knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
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(q) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an investment company,
as such term is defined in the United States Investment Company Act of 1940, as amended (the
Investment Company Act);
(r) (A) (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) of 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 Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as
defined in Rule 405 under the Act; and (B) 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 Securities, the Company
was not an ineligible issuer as defined in Rule 405 under the Act;
(s) PricewaterhouseCoopers LLP, which has audited certain financial statements of the
Company and its subsidiaries, is an independent registered public accounting firm as
required by the Securities Act and the Exchange Act and the applicable rules and regulations
of the Commission thereunder;
(t) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act. Each of the Company and its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with managements general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in accordance
with managements general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect thereto. The Company is not aware of any material weaknesses
in its internal control over financial reporting;
(u) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Companys internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting;
(v) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Companys
principal executive officer and principal financial officer by others within those entities;
and such disclosure controls and procedures are effective;
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(w) This Agreement has been duly authorized, executed and delivered by the Company;
(x) The Certificate of Designations has been duly adopted by the Companys Board of
Directors in compliance with its Certificate of Incorporation and By-laws;
(y) The Warrant Agreement has been duly authorized and, when executed and delivered by
the Company and the Warrant Agent, constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors rights and to general equity principles; and the Warrant Agreement will conform
to the description in the Pricing Prospectus and the Prospectus;
(z) The Warrants to be issued and sold by the Company to the Underwriters in accordance
with the terms of the Warrant Agreement have been duly authorized and validly authorized
and, when issued and delivered against payment therefor as provided in the Warrant
Agreement, will be duly and validly issued and the issuance of such Warrants will not be
subject to any preemptive or similar rights and will conform in all material respects to the
description of the Warrants contained in the Pricing Prospectus and the Prospectus;
(aa) The Warrant Shares initially issuable upon exercise of the Warrants have been duly
authorized and validly authorized and reserved for issuance upon exercise of the Warrants
and, when issued and delivered upon exercise of the Warrants against payment of the Exercise
Price (as defined in the Warrant Agreement), will have been duly and validly issued and
fully paid and non-assessable, and the issuance of such Warrant Shares will not be subject
to any preemptive or similar rights, and will conform in all material respects to the
description of the Warrant Shares contained in the Pricing Prospectus and the Prospectus;
(bb) The consolidated historical financial statements, together with related schedules
and notes, set forth or incorporated by reference in the Pricing Prospectus fairly present
in all material respects the consolidated financial position of the Company at the
respective dates indicated and the results of its operations and its cash flows for the
respective periods indicated, in accordance with U.S. generally accepted accounting
principles consistently applied throughout such periods (except as otherwise disclosed
therein). Except as otherwise disclosed in the Pricing Prospectus or the Prospectus, the
historical other financial information and data included or incorporated by reference in the
Pricing Prospectus and the Prospectus are, in all material respects, prepared on a basis
consistent with such financial statements and the books and records of the Company;
(cc) Each of the Company and its subsidiaries has complied in all respects with all
laws, regulations and orders applicable to it or its businesses including, without
limitation, all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated by the Commission thereunder, the laws of the State of Nevada,
various regulations of the Nevada Gaming Commission and the general laws, specific gaming
laws, various regulations and licensing and regulatory control of the Macau government and
Gaming Inspection and Coordination Department, the Pennsylvania Gaming Control Board and the
government of the State of Pennsylvania, and the Casino Regulatory Authority of Singapore
and the Singapore government, in each case, other
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than as would not have a Material Adverse Effect, or as otherwise described in the
Pricing Prospectus;
(dd) Except as would not, individually or in the aggregate, have a Material Adverse
Effect or as otherwise described in the Pricing Prospectus, (i) each of the Company and its
subsidiaries has all certificates, consents, exemptions, orders, permits, licenses,
authorizations or other approvals (each, an Authorization) of and from, and has made all
declarations and filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, necessary or required
to engage in the business currently conducted by it in the manner described in the Pricing
Prospectus; (ii) all such Authorizations are valid and in full force and effect; and (iii)
each of the Company and its subsidiaries is in compliance in all material respects with the
terms and conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with respect thereto;
(ee) Each of the Company and its subsidiaries owns or possesses or has the right to use
the licenses, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, the Intellectual Property) presently employed
by it in connection with, and material to, individually or in the aggregate, its operations,
except where the failure to own, possess or have the right to use would not have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries have received any notice
of infringement of or conflict with asserted rights of others with respect to the foregoing
which, individually or in the aggregate, has, or would reasonably be expected to result in,
a Material Adverse Effect. To the knowledge of the Company and its subsidiaries, the use of
such Intellectual Property in connection with the business and operations of the Company and
its subsidiaries as described in the Pricing Prospectus does not infringe on the rights of
any person, except as would not, individually or in the aggregate, result in a Material
Adverse Effect;
(ff) All income tax returns required to be filed by the Company and its subsidiaries in
all jurisdictions have been timely and duly filed, other than those filings being contested
in good faith, except where the failure to so file any such returns could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as
disclosed in the Pricing Prospectus, there are no income tax returns of the Company or its
subsidiaries that are currently being audited by state, local or federal taxing authorities
or agencies (and with respect to which the Company or its subsidiaries has received notice),
where the findings of such audit could reasonably be expected to result in a Material
Adverse Effect. All material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such entities, have been
paid, other than those being contested in good faith and for which adequate reserves have
been provided or those currently payable without penalty or interest;
(gg) Except as disclosed in the Pricing Prospectus, including, without limitation under
the caption in the Companys Annual Report on Form 10-K for the year ended December 31, 2007
entitled Risk FactorsRisks Related to Our BusinessOur insurance coverage may not be
adequate to cover all possible losses that our properties could suffer. In addition our
insurance costs may increase and we may not be able to obtain the same insurance coverage in
the future, each of the Company and its
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subsidiaries maintains insurance covering its properties, operations, personnel and
businesses which insures against such losses and risks as are adequate in accordance with
the Companys reasonable business judgment to protect the Company, its subsidiaries and
their businesses. Except as disclosed in the Pricing Prospectus, including, without
limitation under the caption entitled Risk FactorsRisks Related to Our BusinessOur
insurance coverage may not be adequate to cover all possible losses that our properties
could suffer. In addition our insurance costs may increase and we may not be able to obtain
the same insurance coverage in the future, all such insurance is outstanding and duly in
force in all material respects on the date hereof and will be outstanding and duly in force
in all material respects at the Time of Delivery;
(hh) Except as disclosed in the Pricing Prospectus, there are no material business
relationships or related party transactions which would be required to be disclosed therein
by Item 404 of Regulation S-K of the Commission and such business relationship or related
party transaction described therein is a fair and accurate description in all material
respects of the relationships and transactions so described;
(ii) Each of the Company and its subsidiaries 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), except for any
non-compliance which would not have a Material Adverse Effect; no reportable event (as
defined in ERISA) has occurred with respect to any pension plan (as defined in ERISA) for
which the Company or any of its subsidiaries would have any liability, except such as would
not have a Material Adverse Effect; each of the Company and its subsidiaries has not
incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any pension plan or (ii) Section 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the Code), in each case, except as would not have a Material
Adverse Effect; and each pension plan for which the Company or any of its subsidiaries
would have any liability, except as would not have a Material Adverse Effect, that is
intended to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification, except, in each case, as would not have a Material Adverse
Effect;
(jj) There is, except as set forth in the Pricing Prospectus, (i) no material unfair
labor practice complaint pending against the Company or any of its subsidiaries or, to the
best knowledge of each of the Company and its subsidiaries threatened against it, before the
National Labor Relations Board or any state or local labor relations board, and no
significant grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
subsidiaries, or, to the best knowledge of each of the Company and its subsidiaries,
threatened against it, (ii) no material strike, labor dispute, slowdown or stoppage pending
against the Company or any of its subsidiaries nor, to the best knowledge of each of the
Company and its subsidiaries, threatened against it and (iii) to the best knowledge of each
of the Company and its subsidiaries, no union representation question existing with respect
to the employees of the Company or any of its subsidiaries, and, to the best knowledge of
each of the Company and its subsidiaries, no union organizing activities are taking place,
except, in each case of clauses (i), (ii) or (iii), as would not have a Material Adverse
Effect;
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(kk) Each of the Company and its subsidiaries has reviewed the effect of Environmental
Laws (as defined below) and the disposal of hazardous or toxic substances, wastes,
pollutants and contaminants on the business, assets, operations and properties of the
Company and its subsidiaries, as applicable, and identified and evaluated associated costs
and liabilities (including, without limitation, any material capital and operating
expenditures required for clean-up, closure of properties and compliance with environmental,
safety or similar laws or regulations applicable to it or its business or property relating
to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (Environmental Laws), all permits,
licenses and approvals, all related constraints on operating activities and all potential
liabilities to third parties). On the basis of such reviews, each of the Company and its
subsidiaries has reasonably concluded that such associated costs and liabilities would not
have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has
violated any Environmental Laws, lacks any permit, license or other approval required of it
under applicable Environmental Laws or is violating any term or condition of such permit,
license or approval, in each case, which could reasonably be expected to, either
individually or in the aggregate, have a Material Adverse Effect;
(ll) Neither the Company nor any of its subsidiaries or to any of their knowledge, any
director, officer, agent, employee or other person associated with or acting on behalf of
the Company or any of its subsidiaries (i) has used any corporate funds during the last five
years 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,
rebate, payoff, influence payment, kickback or other unlawful payment, except, in each case,
such as would not, individually or in the aggregate, have a Material Adverse Effect;
(mm) Except as described in the Pricing Prospectus, the operations of the Company and
its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
Money Laundering Laws) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any
subsidiary with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened, except as would not, individually or in the aggregate, have a
Material Adverse Effect;
(nn) Other than as contemplated by or described in this Agreement and the Pricing
Prospectus, there is no broker, finder or other party that is entitled to receive from the
Company or any of its subsidiaries any brokerage or finders fee or other fee or commission
as a result of any of the transactions contemplated by this Agreement; and
(oo) Each certificate signed by any officer of the Company and delivered to the
Underwriter or counsel to the Underwriter pursuant to this Agreement shall be deemed to be a
representation and warranty by the Company to the Underwriter as to the matters covered
thereby.
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2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company (i) with respect to the Units, at a purchase price per unit of $97.00
and (ii) with respect to the Common Shares, at a purchase price per share of $5.28, the number of
such Firm Securities set forth opposite the name of such Underwriter in Schedule I hereto and (b)
in the event and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of
the number of Optional Securities as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying such number of
Optional Securities by a fraction, the numerator of which is the maximum number of Optional
Securities which such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional
Securities that all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
18,181,818 Optional Securities at the purchase price per share set forth in the paragraph above,
for the sole purpose of covering sales of shares in excess of the number such Securities, provided
that the purchase price per Optional Security shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Securities but not payable on
the Optional Securities. Any such election to purchase Optional Securities may be exercised only
by written notice from you to the Company, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate number of Optional Securities to be purchased and
the date on which such Optional Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and
the Company otherwise agree in writing, earlier than two or later than ten New York Business Days
after the date of such notice. As used in this Agreement, New York Business Day shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order to close.
3. Upon authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in this Agreement
and the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
one or more definitive global Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (DTC) or its designated custodian. The Company
will deliver the Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer in
Federal (same day) funds, by causing DTC to credit the Securities to the account of Goldman, Sachs
& Co. at DTC. The Company will cause the certificates representing the Securities to be made
available to Goldman, Sachs & Co. for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) at the office of Latham & Watkins LLP, 885 Third Avenue, New York, New
York 10022 (the Closing Location). The time and date of such delivery and payment, with respect
to the Firm Securities, shall be 9:30 a.m., New York City time, on November 14, 2008, or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon in writing and, with respect
to the Optional Securities, 9:30 a.m., New York City time, on the date specified by the
Underwriters in
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the written notice given by the Underwriters of the Underwriters election to purchase
Optional Securities, or such other time and date as the Underwriters and the Company may agree upon
in writing. Such time and date for delivery of the Firm Securities is herein called the First
Time of Delivery, such time and date for delivery of the Optional Securities, if not the First
Time of Delivery, is herein called the Second Time of Delivery, and each such time and date is
herein called a Time of Delivery.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(p) hereof, will be
delivered at the Closing Location, and the Securities will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at 5:00 p.m., New
York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you (such approval not to be unreasonably
delayed) and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commissions close of business on the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be required by Rule 424(b) under the
Act; to make no further amendment or any supplement to the Registration Statement or the Prospectus
prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with copies thereof; to file
promptly all other material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required in connection with the offering or sale of the Securities; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect
of the Securities, of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus or for
additional information; in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the
event of any such issuance of a notice of objection, promptly to take such steps including, without
limitation, amending the Registration Statement or filing a new registration statement, at its own
expense, as may be necessary to permit offers and sales of the Securities by the Underwriters
(references herein to the Registration Statement shall include any such amendment or new
registration statement);
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(b) If on or after the third anniversary (the Renewal Deadline) of the initial effective
date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form satisfactory to you. If at the
Renewal Deadline the Company is no longer eligible to file an automatic shelf registration
statement, the Company will, if it has not already done so, file a new shelf registration statement
relating to the Securities, in a form satisfactory to you 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 Securities to continue as contemplated in the expired registration statement relating
to the Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case may
be;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
reasonably request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be reasonably necessary to complete the
distribution of the Securities; provided that in connection therewith 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 or subject itself to taxation in any such jurisdiction where it is not then so
subject;
(d) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as they may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Securities, and if at
such time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary or desirable during such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify you and upon your request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of
the Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
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(f) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, not to offer, sell contract to sell or otherwise dispose
of, except as provided hereunder any securities of the Company that are substantially similar to
the Securities or the Stock, including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding as of, the date of
this Agreement (or issued or to be issued pursuant to employee stock option plans existing on the
date of this Agreement)), without your prior written consent;
(g) To pay the required Commission filing fees relating to the Securities 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;
(h) To use its commercially reasonable efforts to list, subject to notice of issuance, the
Warrant Shares issuable upon exercise of the Warrants issued with respect to the Series A Preferred
Stock and the Common Shares on the New York Stock Exchange (the Exchange);
(i) Not to be or become, at any time prior to the expiration of two years after the last Time
of Delivery, an open-end investment company, unit investment trust, closed-end investment company
or face-amount certificate company that is or is required to be registered under Section 8 of the
Investment Company Act;
(j) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption Use of Proceeds;
and
(k) The Company will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities.
6.
(a) The Company represents and agrees that, without the prior consent of Goldman, Sachs & Co.,
it has not made and will not make any offer relating to the Securities that would constitute a
free writing prospectus as defined in Rule 405 under the Act; each Underwriter represents and
agrees that, without the prior consent of the Company and Goldman, Sachs & Co., it has not made and
will not make any offer relating to the Securities that would constitute a free writing prospectus;
any such free writing prospectus the use of which has been consented to by the Company and Goldman,
Sachs & Co. is listed on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
-15-
Goldman, Sachs & Co. and, if requested by Goldman, Sachs & Co., will prepare and furnish
without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; provided, however, that this representation and
warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel
and accountants in connection with the registration of the Securities under the Act and the Warrant
Shares issuable upon exercise of the Warrants and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement,
the Warrant Agreement, the Blue Sky Memorandum, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the Securities and the
Warrant Shares issuable upon exercise of the Warrants for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable and documented fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the
Securities on the Exchange; (v) the cost of preparing the Securities; (vi) the cost and charges of
any transfer agent, Warrant Agent or registrar; (vii) any cost incurred in connection with the
listing of the Warrant Shares issuable upon exercise of the Warrants; (viii) fees and expenses of
the transfer agent for the Series A Preferred Stock and of the Warrant Agent; and (ix) all other
costs and expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and disbursements of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission;
-16-
and all requests for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Latham & Watkins LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, with respect to matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, substantially in the form
attached hereto as Annex I(a) and its negative assurance letter, dated such Time of Delivery,
substantially in the form attached hereto as Annex I(b);
(d) Lionel Sawyer & Collins LTD, Nevada counsel for the Company, shall have furnished to you
their written opinion, dated such Time of Delivery, substantially in the form attached hereto as
Annex I(c);
(e) Leonel Alves Law Firm, Macau counsel for the Company, shall have furnished to you their
written opinion, dated such Time of Delivery, substantially in the form attached hereto as Annex
I(d);
(f) Duane Morris LLP, Pennsylvania regulatory counsel for the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, substantially in the form attached hereto
as Annex I(e);
(g) Snell & Wilmer L.L.P., Nevada gaming counsel for the Company, shall have furnished to you
their written opinion, dated such Time of Delivery, substantially in the form attached hereto as
Annex I(f);
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, and also
at each Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex II hereto;
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the Pricing Prospectus
any loss or interference with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Pricing Prospectus there shall not have
been any change in the members equity or capital stock, as applicable, increase in long-term debt
(other than additional draws made under existing credit facilities) or any payment of or
declaration to pay any dividends or other distribution with respect to the capital stock of the
Company or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, stockholders equity
or results of operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities being delivered at such Time
of Delivery on the terms and in the manner contemplated in this Agreement and in the Prospectus;
-17-
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Companys debt securities by any nationally recognized statistical rating
organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Companys debt securities;
(k) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(l) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(m) The Warrant Shares issuable upon exercise of the Warrants issued with respect to the
Series A Preferred Stock and the Common Shares shall have been authorized for listing on the
Exchange subject to official notice of issuance;
(n) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from each of the persons and entities listed on Schedule IV hereto, substantially in the
form attached hereto as Annex III;
(o) As a condition to any purchase of the Securities by the Underwriters, Sheldon G. Adelson
and/or his affiliates shall have agreed, subject to certain conditions and approvals, to convert
all of the Companys 6.5% convertible senior notes due 2013 into approximately 86,363,636 shares of
the Companys common stock at a conversion price of $5.50 per share and shall have purchased
5,250,000 shares of the Series A Preferred Stock and warrants to purchase 87,500,175 shares of
Common Stock pursuant to that certain Note Conversion and Securities Purchase Agreement, by and
between the Company and the person listed on Schedule A thereto; and
(p) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (i) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
-18-
alleged untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be
filed pursuant to Rule 433(d) under the Act and approved or permitted by the Company, or arise out
of or are based upon 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, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided
,
however
, that the Company shall 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, the Pricing Prospectus or the Prospectus, or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company or any Underwriter through Goldman, Sachs & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based upon 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 each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action 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 (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may
-19-
be sought hereunder (whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. No indemnifying party shall be liable for any settlement or
compromise of, or consent to the entry of judgment with respect to any such action or claim
effected without its consent (which consent shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions 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 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 Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, 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
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 and commissions received by the
Underwriters, in each case as set forth in the table 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 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 contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (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), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to any
broker-dealer affiliate of each Underwriter and each person, if any, who
-20-
controls any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director or trustee of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you
or another party or other parties to purchase such Securities on the terms contained herein. If
within thirty six hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then the Company shall be entitled to a further period of thirty six hours
within which to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the Company shall have the
right to postpone such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term Underwriter as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of
the aggregate number of all the Securities to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to
purchase and of the Company to sell the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or
-21-
made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further liability to any
Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co. on behalf of
you as the representative.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives, in care of Goldman, Sachs & Co., 85 Broad Street, 20th Floor, New York, New York
10004, Attention: Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Prospectus,
Attention: Office of the General Counsel;
provided
,
however
, that any notice to an Underwriter
pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company by you upon request.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers,
directors and trustees of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term business day
shall mean any day when the Commissions office in Washington, D.C. is open for business.
-22-
16. The Company acknowledges and agrees that (i) the issuance and sale of the Securities
pursuant to this Agreement is an arms-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement, and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18.
This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, tax structure is limited to
any facts that may be relevant to that treatment.
-23-
If the foregoing is in accordance with your understanding, please sign and return to us six
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
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Very truly yours,
Las Vegas Sands Corp.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President Chief Operating Officer
and Secretary
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Underwriting Agreement
Accepted as of the date hereof:
Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
Underwriting Agreement
SCHEDULE I
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Total Number of Units to be
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Underwriter
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Purchased
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Goldman, Sachs & Co.
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5,196,300
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Total
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5,196,300
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Total Number of Firm
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Number of Optional
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Securities of the
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Securities to be
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Common Shares to be
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Purchased if Maximum
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Underwriter
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Purchased
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Option Exercised
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Goldman, Sachs & Co.
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181,818,182
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18,181,818
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Total
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181,818,182
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18,181,818
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SCHEDULE II
(a)
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Issuer Free Writing Prospectus:
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Pricing Term Sheet dated November 10, 2008, filed with the Commission on November
12, 2008.
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(b)
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Approved Documents Incorporated by Reference:
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None.
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27
SCHEDULE III
Pricing Term Sheet
[See attached]
28
SCHEDULE IV
Dr. Miriam Adelson
Bradley H. Stone
The Stone Crest Trust
William P. Weidner
Weidner Holdings, LLC
Robert G. Goldstein
The Robert and Sheryl Goldstein Trust
SC Goldstein Holdings, LLC
Scott D. Henry
Charles D. Forman
George P. Koo
Irwin A. Siegel
Irwin Chafetz
Andrew R. Heyer
Michael A. Leven
James L. Purcell
29
Annex I(a)
Form of Paul Weiss Opinion
Annex I(b)
Form of Paul Weiss Negative Assurance Letter
Annex I-2
Annex I(c)
Form of Nevada Opinion
Annex I-3
Annex I(d)
Form of Macau Opinion
Annex I-4
Annex I(d)
Form of Pennsylvania Regulatory Opinion
Annex I-5
Annex I(e)
Form of Nevada Gaming Opinion
Annex I-6
ANNEX II
Form of Letter of PricewaterhouseCoopers LLP to be Delivered at such Time of Delivery
Annex III
Form of Lock-Up Agreement
November 10, 2008
Goldman, Sachs & Co.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Re:
Las Vegas Sands Corp. Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representative, propose to enter into an Underwriting
Agreement (the Underwriting Agreement) on behalf of the Underwriters named in Schedule I to such
agreement (collectively, the Underwriters), with Las Vegas Sands Corp., a Nevada corporation (the
Company), providing for a public offering of Series A cumulative perpetual preferred stock,
liquidation preference $100 per share (the Preferred Stock), 5,196,300 warrants (the Warrants)
to purchase an aggregate of approximately 86,605,173 shares of common stock, par value $0.001 per
share (the Common Stock), and an aggregate of 181,818,182 shares of Common Stock of the Company
(collectively, the Securities) pursuant to a Registration Statement on Form S-3 to be filed with
the Securities and Exchange Commission (the SEC).
In consideration of the agreement by the Underwriters to offer and sell the Securities, and of
other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged,
the undersigned agrees that, during the period specified in the fourth paragraph of this agreement
(the Lock-Up Period), the undersigned will not offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of any shares of Preferred Stock or
Common Stock of the Company, or securities convertible into, exchangeable for, or that represent
the right to receive, shares of Preferred Stock or Common Stock of the Company (or any such
substantially similar securities), whether now or hereinafter acquired (collectively the
Undersigneds Shares).
The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any
hedging or other transaction which is designed to or which reasonably could be expected to lead to
or result in a sale or disposition of the Undersigneds Shares even if such shares would be
disposed of by someone other than the undersigned. Such prohibited hedging or other transactions
would include without limitation any short sale or any purchase, sale or grant of any right
(including without limitation any put or call option) with respect to any of the Undersigneds
Shares or with respect to any security that includes, relates to, or derives any significant part
of its value from such shares.
The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for
[90/365] days after the public offering date set forth on the final prospectus used to sell the
Securities pursuant to the Underwriting Agreement.
Notwithstanding the foregoing, the undersigned may make offers, sales, agreements to offer or
sell, solicitations of offers to purchase, swaps, or other disposals of, or transactions in, any of
the Undersigneds Shares (i) as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any beneficiary
of the undersigned or any trust, limited liability company, partnership or corporation for the
direct or indirect benefit of the undersigned, a beneficiary of the undersigned or the immediate
family of such undersigned or beneficiary, provided that such beneficiary of the undersigned,
trust, limited liability company, partnership, corporation or immediate family member, as
applicable, agrees to be bound in writing by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition for value, and provided further that
in the event any such transfer shall trigger a filing with the SEC, the undersigned shall notify
Goldman, Sachs & Co. upon making such filing, (iii) with the prior written consent of Goldman,
Sachs & Co. on behalf of the Underwriters, or (iv) to any beneficiary of or estate of a beneficiary
of the undersigned pursuant to a trust, will or other testamentary document or applicable laws of
descent. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the
corporation may transfer the Undersigneds Shares to any wholly-owned subsidiary of such
corporation;
provided, however
, that in any such case, it shall be a condition to the transfer that
the transferee execute an agreement stating that the transferee is receiving and holding such
capital stock subject to the provisions of this Lock-Up Agreement and there shall be no further
transfer of such capital stock except in accordance with this Lock-Up Agreement, and provided
further that any such transfer shall not involve a disposition for value. For purposes of this
Lock-Up Agreement, immediate family of an individual shall include his or her spouse, and the
ancestors, siblings or issue of said individual, said spouse and said siblings and any relative by
blood, marriage or adoption, not more remote than first cousin. The undersigned now has, and,
except as contemplated above in this paragraph, for the duration of this Lock-Up Agreement will
have, good and marketable title to the Undersigneds Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Companys transfer agent and registrar against the transfer of the
Undersigneds Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further
understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigneds
heirs, legal representatives, successors, and assigns.
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Very truly yours,
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Exact Name of Shareholder
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Authorized Signature
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Title:
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Exhibit
1.2
EXECUTION COPY
NOTE CONVERSION AND SECURITIES PURCHASE AGREEMENT
NOTE CONVERSION AND SECURITIES PURCHASE AGREEMENT, dated November 10, 2008 (this
Agreement
), is entered into by and among Las Vegas Sands Corp. (the
Company
)
and the person listed on
Schedule A
(the
Purchaser
), and relates to the purchase
by the Purchaser of 5,250,000 shares of Preferred Stock (as defined below) and Warrants (as
defined below) to purchase 87,500,175 shares of Common Stock (the Preferred Stock and the Warrants,
together the
Securities
).
WHEREAS, the Board of Directors of the Company has determined that it is in the best interests
of the Company to issue and sell to the Purchaser the Securities on the terms and subject to the
conditions set forth in this Agreement.
WHEREAS, the Company wishes to issue and sell to the Purchaser, and the Purchaser wishes to
purchase, the Securities on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions
. As used in this Agreement, and unless the context requires a
different meaning, the following terms shall have the meanings set forth below:
10-Q Reference Date
has the meaning set forth in
Section 3.7
of this
Agreement.
2004 Equity Award Plan
means the Las Vegas Sands Corp. 2004 Equity Award Plan, as
amended by the First Amendment thereto, dated February 5, 2007.
Approval Default
has the meaning set forth in
Section 5.8
of this Agreement.
Approval Fee
has the meaning set forth in
Section 5.8
of this Agreement.
Approvals
means (i) obtaining an Effective Stockholder Consent or any other
shareholder approval required under the rules and regulations of the New York Stock Exchange, (ii)
the listing of the Common Stock issuable upon the exercise of the Warrants on the New York Stock
Exchange, (iii) the receipt of any prior approval required in connection with the transactions
contemplated by the Transaction Documents (and the issuance of the Underlying Shares upon exercise
of the Warrants) pursuant to any regulations of the Nevada Gaming Commission, the general laws,
specific gaming laws, various regulations and licensing and regulatory control of the Macau
government and Gaming Inspection and Coordination Bureau, the Pennsylvania Gaming Control Board and
the government of the State of Pennsylvania, the Singapore Tourism Board and the Singapore
government and any other Governmental Authority
charged with regulating any gaming activity conducted by the Company and (iv) receipt of any
approval of any other applicable Governmental Authority necessary in connection with the
transactions contemplated by the Transaction Documents (and the issuance of the Underlying Shares
upon exercise of the Warrants) (including Hart-Scott-Rodino clearance, to the extent necessary) and
the expiration of all applicable waiting periods.
Authorization
has the meaning set forth in
Section 3.21
of this Agreement.
Capital Stock
(i) of any Person that is a corporation, means any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate stock; and
(ii) of any other Person, means any and all partnership, membership or other equity interests of
such Person.
Certificate of Designations
means the Certificate of Designations setting forth the
rights, preferences, privileges and other terms of the Preferred Stock, in the form attached as
Exhibit A
hereto.
Code
has the meaning set forth in
Section 3.26
of this Agreement.
Commission
means the Securities and Exchange Commission or any similar agency then
having jurisdiction to enforce the Securities Act.
Common Stock
means the shares of the Companys common stock, par value $0.001 per
share.
Consolidated Historical Financial Statements
has the meaning set forth in
Section 3.20
of this Agreement.
Convertible Note Purchase Agreement
means the Convertible Note Purchase Agreement,
dated as of September 30, 2008, by and between the Company and Dr. Adelson.
Credit Agreement
means the Credit and Guarantee Agreement, dated as of May 23, 2007,
by and among Las Vegas Sands, LLC, the affiliates of Las Vegas Sands, LLC named therein as
guarantors, the lenders party hereto from time to time, The Bank of Nova Scotia, as administrative
agent for the lenders and as collateral agent, Goldman Sachs Credit Partners L.P., Lehman Brothers
Inc. and Citigroup Global Markets Inc., as joint lead arrangers and joint bookrunners and as
syndication agents, and JPMorgan Chase Bank, as documentation agent.
DTC
has the meaning set forth in Section 5.11 of this Agreement.
Effective Stockholder Consent
means the effectiveness of the Stockholder Consent
upon the passage of 20 calendar days following the distribution of the Information Statement to the
holders of Common Stock pursuant to
Section 5.3
hereof and in accordance with the
applicable rules and regulations of the Commission.
Equity Interests
of any Person means (i) Capital Stock of such Person or (ii)
warrants or options exercisable for, other securities convertible into or exchangeable for, or
Note Conversion and Securities Purchase Agreement
Page 2 of 27
other rights to acquire (whether by conversion, exercise, exchange or otherwise) Capital Stock
of such Person.
Environmental Laws
has the meaning set forth in
Section 3.28
of this
Agreement.
ERISA
has the meaning set forth in
Section 3.26
of this Agreement.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
Governmental Authority
means the government of any nation, state, city, locality or
other political subdivision of any thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
Indenture
means the Indenture, dated as of September 30, 2008, as supplemented by
the First Supplemental Indenture, dated as of September 30, 2008, by and between the Company and
U.S. Bank National Association, as trustee.
Information Statement
has the meaning set forth in
Section 5.3
of this
Agreement.
Intellectual Property
has the meaning set forth in
Section 3.22
of this
Agreement.
Investor Rights Agreement
means the Investor Rights Agreement, dated as September
30, 2008, by and between the Company and Dr. Miriam Adelson.
Material Adverse Effect
has the meaning set forth in
Section 3.7
of this
Agreement.
Material Subsidiaries
has the meaning set forth in
Section 3.9
of this
Agreement.
Money Laundering Laws
has the meaning set forth in
Section 3.30
of this
Agreement.
Notes
means the Companys 6
1
/
2
% Convertible Senior Notes due 2013.
Person
means any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint stock company,
Governmental Authority or other entity of any kind.
Preferred Stock
means the Companys Series A cumulative perpetual preferred stock,
par value $0.001 per share, liquidation preference $100.00 per share.
Principal Stockholder
means Sheldon G. Adelson.
Page 3 of 27
Prospectus
means the base prospectus contained in the Companys Registration
Statement on Form S-3 (File No. 333-155100) filed on November 6, 2008, as supplemented by the
preliminary prospectus supplement thereto (and the documents incorporated by reference therein),
filed on November 10, 2008 and any Issuer Free Writer Prospectus (as such term is defined in the
Underwriting Agreement).
Recent Public Filings
has the meaning set forth in
Section 3.7
of this
Agreement.
Related Party
means (1) any spouse and any child, stepchild, sibling or descendant
of the Principal Stockholder or the Purchaser; (2) any estate of the Principal Stockholder or the
Purchaser or any person under clause (1); (3) any person who receives a beneficial interest in the
Company from an estate under clause (2) to the extent of such interest; (4) any executor, personal
administrator or trustee who holds such beneficial interest in the Company for the benefit of, or
as fiduciary for, any person under clauses (1), (2), or (3) to the extent of such interest; (5) any
corporation, partnership, limited liability company, trust, or similar entity owned or controlled
by the Principal Stockholder or the Purchaser or any person referred to in clause (1), (2), (3) or
(4) or for the benefit of any person referred to in clause (1); and (6) the spouse or issue of one
or more of the individuals described in clause (1).
Second Amended and Restated Registration Rights Agreement
means the Amended and
Restated Registration Rights Agreement, to be entered into as of the Closing Date, among the
Company and the stockholders named therein in the form attached as
Exhibit B
.
Securities
has the meaning set forth in the recitals.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
Stockholder Consent
means the written consent of holders of a majority of the
outstanding shares of Common Stock approving (i) the exercise of the Warrants, (ii) the issuance of
the Common Stock upon exercise of the Warrants, and (iii) the pre-emptive rights granted pursuant
to Section 2.1 of the Investor Rights Agreement, in the form attached as
Exhibit C
hereto.
Subsidiary
or
Subsidiaries
means, with respect to any Person, any
corporation more than 50% of the Voting Stock of which is owned directly or indirectly by such
Person, and any partnership, association, joint venture or other entity in which such Person owns
more than 50% of the equity interests or has the power to elect a majority of the board of
directors or other governing body.
Transaction Documents
means this Agreement, the Warrant Agreement, the Warrants and
the Second Amended and Restated Registration Rights Agreement.
Underlying Shares
means the shares of Common Stock issuable upon exercise of the
Warrants.
Page 4 of 27
Underwriting Agreement
means the Underwriting Agreement, dated as of the date
hereof, by and between the Company and Goldman, Sachs & Co.
Voting Stock
, as applied to the stock of any corporation, means stock of any class
or classes (however designated) having by the terms thereof ordinary voting power to elect a
majority of the members of the board of directors (or other governing body) of such corporation
other than stock having such power only by reason of the happening of a contingency.
Warrant Agreement
means the Warrant Agreement in the form attached hereto as
Exhibit D
.
Warrant Exercise Date
means the earliest date on which the Company shall have
obtained all of the required Approvals.
Warrants
means the warrants to purchase up to an aggregate of 87,500,175 shares of
Common Stock, each in the form attached as an exhibit to the Warrant Agreement.
ARTICLE 2
PURCHASE AND SALE OF SECURITIES
2.1
Issue and Sale of Securities
. Subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Purchaser the aggregate number of Securities set
forth opposite the Purchasers name on
Schedule A
to this Agreement, and the Purchaser
agrees to pay the Company the purchase price set forth opposite the Purchasers name on
Schedule A
to this Agreement (the
Purchase Price
).
2.2
Closing
. The purchase of Securities shall take place at the closing (the
Closing
) to be held at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, on
November 14, 2008 (the
Closing Date
). Subject to the satisfaction of the conditions
relating to the Closing set forth in
Section 2.3
and
Section 2.4
, at the Closing,
(x) the Company shall enter into the Warrant Agreement, (y) the Company shall issue and deliver to
the Purchaser the shares of Preferred Stock and the Warrants, in each case as evidenced by one or
more certificates, and bearing appropriate legends as hereinafter provided for, dated the Closing
Date and registered in the Purchasers name (or in the name of one or more of the Purchasers
designees), and (z) the Purchaser shall pay to the Company the Purchase Price by wire transfer of
immediately available funds to the account or accounts designated by the Company in writing to the
Purchaser prior to the Closing.
2.3
Company Conditions to Closing
. The obligations of the Company to be performed at
the Closing shall be subject to (i) the satisfaction of the condition that the representations and
warranties of the Purchaser set forth in
Article IV
shall be true and correct on and as of
the Closing Date and (ii) the satisfaction of all of the conditions to closing set forth in Section
8 of the Underwriting Agreement, except for those set forth in Section 8(o) thereof.
Page 5 of 27
2.4
Purchaser Conditions to Closing
. The obligations of the Purchaser to be
performed at the Closing shall be subject to the satisfaction of the following conditions:
(a)
Representations and Warranties
. The representations and warranties set forth in
Article III shall be true and correct on and as of the Closing Date.
(b)
Certificate of Designations
. The Purchaser shall have received evidence
satisfactory to it that the Company has duly adopted and filed with the Secretary of State of the
State of Nevada the Certificate of Designations and that such filing shall have been accepted.
(c)
Satisfaction of Underwriting Agreement Conditions
. The satisfaction of all
conditions to closing set forth in Section 8 of the Underwriting Agreement, except for those set
forth in Section 8(o) thereof.
(d)
Certificates; Resolutions
. The Purchaser shall have received a certificate of the
Secretary or Assistant Secretary of the Company setting forth (a) resolutions of the Board of
Directors of the Company with respect to the authorization of the Company to execute, deliver and
perform its obligations under each Transaction Document to which it is a party, issue the
Securities and enter into the transactions contemplated by the Transaction Documents, (b) the
officers of the Company who are authorized to sign the Securities and the other Transaction
Documents, (c) specimen signatures of such authorized officers, and (d) the Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws of the Company certified as being true
and complete. The Purchaser shall have received a certificate of an officer of the Company
certifying as to such matters as the Purchaser may reasonably specify.
(e)
Execution of Transaction Document
. The Company shall have executed the Warrant
Agreement and the Second Amended and Restated Registration Rights Agreement.
(f)
Securities
. The Company shall have duly issued and delivered 5,250,000 shares of
Preferred Stock to the Purchaser or one or more of the Purchasers designees and the Company shall
have duly executed and delivered the Warrants, pursuant to, and in accordance with, the Warrant
Agreement; to the Purchaser or one or more of the Purchasers designees.
(g)
Opinions
. The Purchaser shall have received written opinions, addressed to it,
issued by (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, securities counsel to the Company, (ii)
Lionel Sawyer & Collins, Nevada counsel to the Company, (iii) Snell & Wilmer LLP, Nevada gaming
counsel to the Company, (iv) Leonel Alves Law Firm, Macau counsel to the Company, and (v) Duane
Morris LLP, Pennsylvania counsel to the Company, in each case, in form and substance satisfactory
to the Purchaser.
(h)
Purchase Permitted by Applicable Law, etc
. On the Closing Date, (a) the
Purchasers purchase of the Securities to be purchased by the Purchaser at the Closing shall (i) be
permitted by the laws and regulations of each jurisdiction to which the Purchaser is subject and
each gaming authority identified in (iii) of the definition of Approvals, (ii) not violate
Page 6 of 27
any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (iii) not subject the Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation, and (b) no litigation
shall be pending or threatened, which does or, with respect to any threatened litigation,
seeks to, enjoin, prohibit or restrain, the purchase or repayment of any Securities or the
consummation of the transactions contemplated by this Agreement or any other Transaction Document.
If requested by the Purchaser, the Purchaser shall have received a certificate of an officer of the
Company certifying as to such matters of fact as the Purchaser may reasonably specify to enable the
Purchaser to determine whether the Purchasers receipt of such Securities is so permitted.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, the Purchaser as follows:
3.1 The Company has the full power and authority to execute and deliver, and perform its
obligations under this Agreement and the other Transaction Documents and to issue and sell the
Securities and to consummate the transactions contemplated hereby and thereby. The execution and
delivery by the Company of this Agreement and the other Transaction Documents, the filing of the
Certificate of Designations with the Secretary of State of the State of Nevada, the issuance and
sale of the Securities, and the consummation by the Company of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the part of the Company
and no other corporate proceedings on the part of the Company are necessary to approve this
Agreement or any other Transaction Document, the issuance and sale of the Preferred Stock, the
issuance and sale of the Warrants or the consummation of the transactions contemplated hereby and
thereby. The Companys Board of Directors has authorized the stockholders of the Company to act by
written consent to approve the exercise of the Warrants and the issuance of the Common Stock upon
exercise of the Warrants. As of the closing Date, the Company will have duly executed and
delivered this Agreement and the other Transaction Documents, and, assuming due execution and
delivery of this Agreement by the Purchaser, this Agreement and the other Transaction Documents
will constitute the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except (i) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors rights generally or by equitable principles
relating to enforceability and (ii) to the extent that the indemnification and contribution
provisions of the Second Amended and Restated Registration Rights Agreement may be unenforceable by
virtue of contravening public policy.
3.2 The shares of Preferred Stock have been duly authorized, and, when issued and delivered
pursuant to this Agreement, such Preferred Shares will be validly issued and fully paid and
non-assessable.
3.3 The Underlying Shares have been duly authorized and, when issued upon exercise of the
Warrants against payment of the exercise price, will be validly issued, fully paid
Page 7 of 27
and
nonassessable and will conform in all material respects to the description of the Common Stock set
forth under the caption Description of Capital Stock in the Companys Registration Statement on
Form S-3 (File No. 333-155100) filed on November 6, 2008.
(a) The Board of Directors of the Company has duly and validly adopted resolutions initially
reserving 87,500,175 shares of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue and deliver the Underlying Shares upon exercise of the Warrants.
(b) Other than pursuant to the Investor Rights Agreement, no Person is entitled to preemptive
or other rights to subscribe for the Securities or Underlying Shares.
3.4 Assuming the accuracy of the representations and warranties and compliance with the
covenants contained herein by the Purchaser, and the compliance by the Purchaser with the transfer
restrictions on the Securities set forth herein, no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is required
by the Company or its Subsidiaries for the execution and delivery of the Transaction Documents, the
issuance and sale of the Securities, or the consummation by the Company of the transactions
contemplated hereby and thereby, except the filing with the Commission of the Information
Statement, the filing with the Commission of a Current Report on Form 8-K relating to the execution
and delivery of the Transaction Documents and the issuance and sale of the Securities, the filing
of the Certificate of Designations with the Secretary of State of the State of Nevada and the
listing of Common Stock issuable upon exercise of the Warrants on the New York Stock Exchange, and
such consents, approvals, authorizations, orders, registrations and qualifications that have been
obtained and are in full force and effect as of the Closing Date.
3.5 Neither the Company nor any person acting on its behalf has offered to sell the Securities
by means of any form of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
3.6 Except for the execution of the Stockholder Consent by holders of a majority of the
outstanding shares of Common Stock, no vote of the holders of any class or series of Capital Stock
of the Company (in their capacity as such holders) is necessary to approve or consummate the
transactions contemplated by this Agreement, the Transaction Documents and the Securities,
including the filing of the Certificate of Designations, and the issuance of the Securities to the
Purchaser and the issuance of the Underlying Shares upon exercise of the Warrants.
3.7 Neither the Company nor any of its Subsidiaries has sustained since the date of the latest
financial statements included in the Companys most recent quarterly report filed with the
Commission on Form 10-Q (the
10-Q Reference Date
) any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in or contemplated by the Companys Annual Report filed with the Commission on Form 10-K for
the year ending December 31, 2007, any other periodic or current reports filed with the Commission
thereafter and the Prospectus (the Form 10-K together with
Page 8 of 27
such subsequent reports and the
Prospectus, the
Recent Public Filings
); and, since the 10-Q Reference Date, there has not
been any change in the Capital Stock other than issuance of Common Stock pursuant to awards made
under the 2004 Equity Award Plan or any increase in the long-term debt (except as previously
disclosed to the Purchaser) of the Company or any of its
Subsidiaries or any material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in or affecting the general affairs, management,
business, properties, prospects or condition (financial or other), stockholders equity or results
of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Recent Public Filings (any such change or event, a
Material Adverse
Effect
).
3.8 The Company and its Subsidiaries have good and marketable title in fee simple to all
material real property and good and marketable title to all material personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except such as are
described in the Recent Public Filings or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held under lease by the
Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are described in the Recent Public Filings or are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the Company
and its subsidiaries.
3.9 The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Nevada with power and authority (corporate and other) to
own its properties and conduct its business as described in the Recent Public Filings and has been
duly qualified to do business as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the failure to be so
qualified or in good standing would not, individually or in the aggregate, have a Material Adverse
Effect; and each of Las Vegas Sands, LLC, Venetian Casino Resort, LLC, Interface Group-Nevada,
Inc., Palazzo Condo Tower, LLC, Sands Pennsylvania, Inc., Sands Bethworks Gaming, LLC, Venetian
Venture Development, LLC, Venetian Venture Development Intermediate I, Venetian Venture Development
Intermediate II, Venetian Venture Development Intermediate Limited, Venetian Macau Limited,
Venetian Cotai Limited, Venetian Orient Limited, Cotai Waterjets (Macau) Limited, Cotai Waterjets
(HK) Limited, CotaiJet Holdings (II) Limited and Marina Bay Sands Pte. Ltd. (collectively, the
Material Subsidiaries
), each of which is a Subsidiary of the Company, has been duly
incorporated or organized and is validly existing as a corporation or limited liability company, as
the case may be, in good standing under the laws of its jurisdiction of incorporation or formation,
as the case may be; and each of the Subsidiaries of the Company, other than the Material
Subsidiaries, has been duly incorporated or organized and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under the laws of its jurisdiction
of incorporation or formation, as the case may be, except where the failure to be in good standing
would not have a Material Adverse Effect.
Page 9 of 27
3.10 The Company has an authorized capitalization as set forth in the Recent Public Filings,
all of the issued shares of Capital Stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of Capital Stock or
other ownership interests, as the case may be, of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth
in the Recent Public Filings) and, except for certain of the
Companys Subsidiaries are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
3.11 Prior to the Closing Date, neither the Company nor any of its affiliates has taken any
action which is designed to or which has constituted or which might have been expected to cause or
result in stabilization or manipulation of the price of any security of the Company in connection
with the offering of the Securities.
3.12 The issuance and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Transaction Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or
to which any of the property or assets of the Company or any of its Subsidiaries is subject, (ii)
the provisions of the Amended and Restated Articles of Incorporation or Amended and Restated
By-laws of the Company or (iii) except for obtaining any Approvals in respect of the transactions
contemplated by the Transaction Documents and assuming the accuracy of the representations and
warranties and compliance with the covenants contained herein by the holders of the Securities with
the transfer restrictions on the Securities described herein, any statute applicable to the Company
or any order, rule or regulation applicable to the Company of any court or governmental agency or
body having jurisdiction over the Company or any of its Subsidiaries or any of their properties
except, in the case of clauses (i) and (iii), for such conflicts, breaches, violations or defaults
as would not have a Material Adverse Effect; and, assuming the accuracy of the representations and
warranties and compliance with the covenants contained herein by the holders of the Securities with
the transfer restrictions on the Securities described herein, no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental agency or body is
required by the Company or its Subsidiaries for the issuance and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement or the Warrant
Agreement, except filings made pursuant to the Second Amended and Restated Registration Rights
Agreement, the filing of the Certificate of Designations, filings related to the transactions
contemplated hereby on Schedule 13D or 13G, Form 4 and Form 8-K or under applicable gaming laws
with the Commission and such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws or foreign securities laws, as
applicable, in connection with the purchase and distribution of the Securities and such consents,
approvals, authorizations, orders, registrations and qualifications that have been obtained and are
in full force and effect as of the Closing Date.
Page 10 of 27
3.13 Neither the Company nor any of its Subsidiaries is (i) in violation of its Amended and
Restated Articles of Incorporation or Amended and Restated By-laws or limited liability company
agreement or similar organizational document, as applicable, or (ii) in default in the performance
or observance of any material obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except in the case of clause (ii) as
would not have a Material Adverse Effect.
3.14 Other than as set forth in the Recent Public Filings, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a party or of which any
property of the Company or any of its Subsidiaries is the subject which now have or could
reasonably be expected in the future to have a Material Adverse Effect; and, to the Companys
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
3.15 The Company is not, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof, will not be an investment company, as such term is
defined in the United States Investment Company Act of 1940, as amended.
3.16 The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act. Each of the Company and its Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with managements general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
3.17 The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its Subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
3.18 PricewaterhouseCoopers LLP, which has audited certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm as required by the
Securities Act and the Exchange Act and the applicable rules and regulations of the Commission
thereunder.
3.19 The consolidated historical financial statements (the
Consolidated Historical
Financial Statements
) from the Companys preceding three full fiscal years and any fiscal
quarters since the conclusion of the Companys latest fiscal year contained in the Recent Public
Filings fairly present in all material respects the consolidated financial position of the Company
at the respective dates indicated and the results of its operations and its cash flows for
Page 11 of 27
the respective periods indicated, in accordance with U.S. generally accepted accounting principles
consistently applied throughout such periods (except as otherwise disclosed therein). Except as
otherwise disclosed in such Consolidated Historical Financial Statements or in any Recent Public
Filings, the Consolidated Historical Financial Statements are, in all material respects, prepared
on a basis consistent with such financial statements and the books and records of the Company.
3.20 Except for obtaining any Approvals in respect of the transactions contemplated by the
Transaction Documents, each of the Company and its Subsidiaries has complied in all respects with
all laws, regulations and orders applicable to it or its businesses including, without limitation,
all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated by the Commission thereunder, the laws of the State of Nevada, various regulations of
the Nevada Gaming Commission and the general laws, specific gaming laws, various regulations and
licensing and regulatory control of the Macau government and Gaming Inspection and Coordination
Bureau, the Pennsylvania Gaming Control Board and the government of the State of Pennsylvania, and
the Singapore Tourism Board and the Singapore government, in each case, other than as would not
have a Material Adverse Effect, or as otherwise described in the Recent Public Filings.
3.21 Except for obtaining any Approvals in respect of the transactions contemplated by the
Transaction Documents and except as would not, individually or in the aggregate, have a Material
Adverse Effect or as otherwise described in the Recent Public Filings, (i) each of the Company and
its Subsidiaries has all certificates, consents, exemptions, orders, permits, licenses,
authorizations or other approvals (each, an
Authorization
) of and from, and has made all
declarations and filings with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, necessary or required to engage
in the business currently conducted by it in the manner described in the Recent Public Filings;
(ii) all such Authorizations are valid and in full force and effect; and (iii) each of the Company
and its Subsidiaries is in compliance in all material respects with the terms and conditions of all
such Authorizations and with the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto.
3.22 Each of the Company and its Subsidiaries owns or possesses or has the right to use the
licenses, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks and
trade names (collectively, the
Intellectual Property
) presently employed by it in
connection with, and material to, individually or in the aggregate, its operations, except where
the failure to own, possess or have the right to use would not have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries have received any notice of infringement of or
conflict with asserted rights of others with respect to the foregoing which, individually or in the
aggregate, has, or would reasonably be expected to result in, a Material Adverse Effect. To the
knowledge of the Company and its subsidiaries, the use of such Intellectual Property in connection
with the business and operations of the Company and its Subsidiaries as described in the Recent
Public Filings does not infringe on the rights of any person, except as would not, individually or
in the aggregate, result in a Material Adverse Effect.
Page 12 of 27
3.23 All income tax returns required to be filed by the Company and its Subsidiaries in all
jurisdictions have been timely and duly filed, other than those filings being contested in good
faith, except where the failure to so file any such returns could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the
Recent Public Filings, there are no income tax returns of the Company or its Subsidiaries that are
currently being audited by state, local or federal taxing authorities or agencies (and with respect
to which the Company or its Subsidiaries has received notice), where the findings of such audit
could reasonably be expected to result in a Material Adverse Effect. All material taxes, including withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities, have been paid, other than those being
contested in good faith and for which adequate reserves have been provided or those currently
payable without penalty or interest.
3.24 Except as disclosed under the caption in the Companys Annual Report on Form 10-K for the
year ended December 31, 2007 entitled Risk FactorsRisks Related to Our BusinessOur insurance
coverage may not be adequate to cover all possible losses that our properties could suffer. In
addition our insurance costs may increase and we may not be able to obtain the same insurance
coverage in the future, each of the Company and its Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses which insures against such losses and risks as are
adequate in accordance with the Companys reasonable business judgment to protect the Company, its
Subsidiaries and their businesses. Except as disclosed in the Recent Public Filings, including,
without limitation, under the caption entitled Risk FactorsRisks Related to Our BusinessOur
insurance coverage may not be adequate to cover all possible losses that our properties could
suffer. In addition our insurance costs may increase and we may not be able to obtain the same
insurance coverage in the future, in the Companys Annual Report on Form 10-K for the year ended
December 31, 2007, all such insurance is outstanding and duly in force in all material respects on
the Closing Date.
3.25 Except as disclosed in the Recent Public Filings, and except for the transactions
contemplated by this Agreement, there are no material business relationships or related party
transactions which would be required to be disclosed therein by Item 404 of Regulation S-K of the
Commission and such business relationship or related party transaction described therein is a fair
and accurate description in all material respects of the relationships and transactions so
described.
3.26 Each of the Company and its Subsidiaries 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
), except for any
non-compliance which would not have a Material Adverse Effect; no reportable event (as defined in
ERISA) has occurred with respect to any pension plan (as defined in ERISA) for which the Company
or any of its Subsidiaries would have any liability, except such as would not have a Material
Adverse Effect; each of the Company and its Subsidiaries has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any
pension plan or (ii) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
Code
), in each
case, except as would not have a Material Adverse Effect; and each pension
Page 13 of 27
plan for which the
Company or any of its Subsidiaries would have any liability, except as would not have a Material
Adverse Effect, that is intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification, except, in each case, as would not have a Material
Adverse Effect.
3.27 There is, except as set forth in the Recent Public Filings, (i) no material unfair labor
practice complaint pending against the Company or any of its Subsidiaries or, to the best knowledge
of each of the Company and its Subsidiaries threatened against it, before the
National Labor Relations Board or any state or local labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of its subsidiaries, or, to the best knowledge
of each of the Company and its subsidiaries, threatened against it, (ii) no material strike, labor
dispute, slowdown or stoppage pending against the Company or any of its Subsidiaries nor, to the
best knowledge of each of the Company and its subsidiaries, threatened against it and (iii) to the
best knowledge of each of the Company and its subsidiaries, no union representation question
existing with respect to the employees of the Company or any of its subsidiaries, and, to the best
knowledge of each of the Company and its subsidiaries, no union organizing activities are taking
place, except, in each case of clauses (i), (ii) or (iii), as would not have a Material Adverse
Effect.
3.28 Each of the Company and its Subsidiaries has reviewed the effect of Environmental Laws
(as defined below) and the disposal of hazardous or toxic substances, wastes, pollutants and
contaminants on the business, assets, operations and properties of the Company and its
subsidiaries, as applicable, and identified and evaluated associated costs and liabilities
(including, without limitation, any material capital and operating expenditures required for
clean-up, closure of properties and compliance with environmental, safety or similar laws or
regulations applicable to it or its business or property relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(
Environmental Laws
), all permits, licenses and approvals, all related constraints on
operating activities and all potential liabilities to third parties). On the basis of such
reviews, each of the Company and its Subsidiaries has reasonably concluded that such associated
costs and liabilities would not have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has violated any Environmental Laws, lacks any permit, license or other approval
required of it under applicable Environmental Laws or is violating any term or condition of such
permit, license or approval, in each case, which could reasonably be expected to, either
individually or in the aggregate, have a Material Adverse Effect.
3.29 Neither the Company nor any of its Subsidiaries or to any of their knowledge, any
director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its Subsidiaries (i) has used any corporate funds during the last five years 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, rebate, payoff, influence
Page 14 of 27
payment, kickback or other unlawful payment, except, in each case, such as would not, individually or in the
aggregate, have a Material Adverse Effect.
3.30 Except as described in the Recent Public Filings, the operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the
Money Laundering Laws
) and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any
subsidiary with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened, except as would not, individually or in the aggregate, have a Material
Adverse Effect.
3.31 Other than as contemplated by or described in this Agreement, there is no broker, finder
or other party that is entitled to receive from the Company or any of its Subsidiaries any
brokerage or finders fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
3.32 Each certificate signed by any officer of the Company and delivered to the Purchaser or
counsel to the Purchaser pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company to the Purchaser as to the matters covered thereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby, severally with respect to itself only, makes the following
representations and warranties for the benefit of the Company as of the Closing Date:
4.1
Organization, Standing and Power
. If the Purchaser is an entity, the Purchaser is
duly organized, validly existing and in good standing under the laws of the jurisdiction in which
it is organized.
4.2
Authority; Execution and Delivery; Enforceability
. The Purchaser has the full
power and authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. If the Purchaser is an entity, the execution and delivery by the
Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the Purchaser and no other
proceedings on the part of the Purchaser are necessary to approve this Agreement and to consummate
the transactions contemplated hereby. The Purchaser has duly executed and delivered this
Agreement, and, assuming due execution and delivery by the Company, this Agreement constitutes the
legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
Page 15 of 27
moratorium or similar laws affecting
the enforcement of creditors rights generally or by equitable principles relating to
enforceability.
4.3
Accredited Investor
.
(a) The Purchaser is an accredited investor (as defined in Rule 501 under the Securities
Act).
(b) The Purchaser has such knowledge and experience in financial and business matters and the
Purchaser is capable of utilizing the information that is available to the Purchaser concerning the
Company to evaluate the risks of investment in the Company including the risk that the Purchaser
could lose its entire investment in the Securities (and the Common Stock issuable upon exercise of
the Warrants).
4.4
Investment Representations and Warranties
. The Purchaser understands that there
is no public market for the sale or other transfer of the Securities, such a market may not develop
and that the sale or other transfer of the Securities is restricted by this Agreement. The
Purchaser understands that the Purchaser may be required to bear the economic risk of the
investment indefinitely.
4.5
No Conflicts
. Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or result in any violation
of or constitute a default under any term of any material agreement, mortgage, indenture, license,
permit, lease, or other instrument, judgment, decree, order, law, or regulation by which the
Purchaser is bound.
ARTICLE 5
AGREEMENTS
5.1
Conversion of Notes
. The Purchaser hereby covenants and agrees to convert
$475,000,000 aggregate principal amount of the Notes on the Convertibility Date (as such term is
defined in the Convertible Note Purchase Agreement), pursuant to and in accordance with the terms
of the Notes. For avoidance of doubt, the parties hereby acknowledge, that immediately after the
completion of the offerings contemplated by the Underwriting Agreement, the Conversion Rate (as
such term is defined in the Indenture) shall be 181.8182 and the Conversion Price (as such term is
defined in the Indenture) shall be $5.50. Prior to the Convertibility Date, the Purchaser agrees
that it will not sell, assign or transfer the Notes, unless the purchaser, assignee or transferee
thereof agrees in writing, for the benefit of the Company, to comply with the terms of this
Section 5.1
as if such purchaser, assignee or transferee was the Purchaser; provided,
however, that a transfer from the Purchaser to any Adelson Holder (as such term is defined in the
Second Amended and Restated Registration Rights Agreement) (or a transfer from an Adelson Holder to
another Adelson Holder) shall not require execution of such a writing if such a writing has already
been provided by such Adelson Holder.
Page 16 of 27
5.2
Restrictions on Exercise of the Warrants
. The Purchaser acknowledges and agrees
that it shall not have the right to exercise the Warrants to purchase Common Stock unless and until
the Warrant Exercise Date occurs. Prior to the Warrant Exercise Date, the Purchaser agrees that it
will not sell, assign or transfer the Warrants unless the purchaser, assignee or transferee thereof
agrees in writing, for the benefit of the Company, to comply with the terms of this
Section
5.2
as if such purchaser, assignee or transferee was the Purchaser; provided, however, that a
transfer from the Purchaser to any Adelson Holder (as such term is defined in the Second Amended
and Restated Registration Rights Agreement) (or a transfer from an Adelson Holder to another
Adelson Holder) shall not require execution of such a writing if such a writing has already been
provided by such Adelson Holder.
5.3
Information Statement
. Promptly following the date of this Agreement, the
Company shall prepare and, in no event more than 40 days after the Closing Date, file with the
Commission an information statement describing the Stockholder Consent and containing the
information required by Schedule 14C in accordance with all applicable rules and regulations of the
Commission (the
Information Statement
). The Company shall use its reasonable best
efforts to cause the Commission to clear the Information Statement for mailing to stockholders. As
soon as reasonably practicable after the Commission has cleared the Information Statement, the
Company shall mail the Information Statement to the holders of its Common Stock. The Company shall
provide the Purchaser with a copy of the Information Statement and all modifications thereto prior
to filing or delivery to the Commission (and the Purchaser shall have a reasonable period to review
and comment on such Information Statement), and the Company shall consult with the Purchaser in
connection therewith. The Company shall not mail any Information Statement, or any amendment or
supplement thereto, to which the Purchaser reasonably and timely objects. The Purchaser hereby
waives the obligation of the Company set forth in Section 5.2 of the Convertible Note Purchase
Agreement to file an information statement on Schedule 14C in respect of the stockholder consent
received in connection with the issuance of the Notes within 40 days of September 30, 2008, so long
as such information statement is filed within 40 days of the Closing Date. The Purchaser and the
Company hereby agree that the Company may satisfy its obligations under Section 5.2 of the
Convertible Note Purchase Agreement in the Information Statement filed pursuant to this Section
5.3, provided that the Information Statement filed pursuant to this Section 5.3 describes the
stockholder consent received in connection with the issuance of the Notes and such other
information as may be required in order to cause the Information Statement to render such
stockholder consent effective.
5.4
Legends and Restrictions on Transfer
. The Purchaser agrees that all certificates
or other instruments representing the Securities and the Underlying Shares contemplated by this
Agreement will bear a legend substantially to the following effect:
IF AT ANY TIME ANY GAMING AUTHORITY FINDS THAT AN OWNER OF THESE SECURITIES
IS UNSUITABLE TO CONTINUE TO HAVE AN INVOLVEMENT IN GAMING IN ANY
JURISDICTION, SUCH OWNER MUST DISPOSE OF SUCH SECURITIES AS PROVIDED BY THE
LAWS OF SUCH JURISDICTION. SUCH LAWS AND REGULATIONS MAY
Page 17 of 27
RESTRICT THE RIGHT UNDER CERTAIN CIRCUMSTANCES: (A)
TO PAY OR RECEIVE ANY DIVIDEND OR INTEREST UPON SUCH SECURITIES; (B) TO
EXERCISE, DIRECTLY OR THROUGH ANY NOMINEE, ANY VOTING RIGHT CONFERRED BY
SUCH SECURITIES; OR (C) RECEIVE ANY REMUNERATION IN ANY FORM FROM THE
COMPANY, FOR SERVICES RENDERED OR OTHERWISE.
5.5
Listing
. The Company will use its reasonable best efforts to cause the Underlying
Shares issuable upon exercise of the Warrants to be authorized for listing on the New York Stock
Exchange as soon as practicable.
5.6
Use of Proceeds
. The Company agrees that it will use the net proceeds it derives
from the sale of the Securities as described in the Prospectus.
5.7
Expenses
. The Company agrees to pay promptly, and in any event within 5 days
following written demand therefor, all the actual and reasonable costs and expenses of preparation,
negotiation, execution and delivery of the Transaction Documents, obtaining the Approvals,
including Hart-Scott-Rodino clearance (with respect to the Purchaser or any other Adelson Holder)
and any consents, amendments, waivers or other modifications thereto, including the fees, expenses
and disbursements of counsel to the Purchaser.
5.8
Approvals
. The Company shall use its reasonable best efforts to obtain each of
the Approvals as soon as practicable, but in any event, within 120 days of the date hereof. In the
event that the Company fails to obtain each of the Approvals within 120 days of the date hereof (an
Approval Default
) and such failure is not the direct result of action (or inaction) taken
by the Principal Stockholder that was designed to prevent the Approvals from being obtained, a fee
(the
Approval Fee
) will accrue from the date on which such Approval Default occurs to,
but not including, the date on which such Approval Default is cured, at a rate of 2.00% per annum
on the aggregate Liquidation Preference (as such term is defined in the Certificate of
Designations) in respect of the Preferred Stock then held directly or beneficially by the Purchaser
and any other Related Party of the Principal Stockholder (
provided
, that in the event that any such
holder only holds Warrants (or Common Stock for which the Warrants have been exercised) at the time
of such Approval Default, the applicable Approval Fee shall be determined in accordance with the
foregoing as though such holder then holds such amount of Preferred Stock as was issued pursuant to
this Agreement in proportion to the amount of Warrants (or the amount of Warrants the exercise of
which yielded the Common Stock) then actually held by such holder), it being understood that (i)
such ownership of the Securities or Underlying Shares shall be reasonably documented to the Company
and (ii) payment of the Approval Fee shall not relieve the Company of its obligation to obtain each
of the Approvals hereunder. Such Approval Fee shall be payable by the Company to the Purchaser or
any designee of the Purchaser on a monthly basis commencing on the one month anniversary of the
occurrence of the Approval Default.
5.9
Waiver of Pre-emptive Rights
. The Purchaser hereby waives, effective as of the
Closing Date, any and all preemptive rights granted under Section 2.1 of the Investor Rights
Agreement with respect to the issuance and sale by the Company of (i) the Preferred
Page 18 of 27
Stock and Warrants pursuant to this Agreement and the issuance of Underlying Shares upon
exercise of the Warrants, and (ii) the issuance of up to 200,000,000 shares of Common Stock,
5,196,300 shares of Series A cumulative preferred stock, par value $0.001 per share, liquidation
preference $100.00 per share and warrants to purchase up to an aggregate of 86,605,174 shares of
Common Stock pursuant to the Underwriting Agreement and the issuance of shares of Common Stock upon
the exercise of such warrants in accordance with the terms thereof.
5.10
Amendment of Investor Rights Agreement
. The Purchaser and Company hereby agree
that the Investor Rights Agreement shall be amended, effective as of the Closing Date, as follows:
(a) the following defined terms and the corresponding explanatory text defining such terms
shall be deleted in their entirety from Section 1.1, entitled Definitions: Exchange Rights
Holder, Qualified Financing, Qualified Financing Notice, and Qualified Financing Securities.
(b) Section 2.3, entitled Qualified Financing, shall be deleted in its entirety.
Except as otherwise amended herein, the Investor Rights Agreement shall otherwise remain in
full force and effect.
5.11
Book-entry
. Notwithstanding anything to the contrary contained herein, upon a
transfer by the Purchaser or one or more of the Purchasers transferees of the Preferred Stock,
which transfer shall make the Preferred Stock eligible for book-entry delivery through The
Depository Trust Company (
DTC
), the Company shall use its commercially reasonable efforts
to cause the Preferred Stock to be (i) rendered eligible for book-entry delivery through DTC in
connection with such transfer, and (ii) assigned a valid CUSIP number in accordance with the
applicable rules and procedures of the CUSIP Service Bureau, in each case, as soon as reasonably
practicable, but in any event, within 15 days of the receipt by the Company of written request
therefor in accordance with this
Section 5.11
.
ARTICLE 6
MISCELLANEOUS
6.1
Notices
. All notices or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telecopied or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally,
telecopied or sent by certified, registered or express mail, as follows:
Page 19 of 27
(a) if to the Company:
Las Vegas Sands Corp.
3555 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Office of the General Counsel
Telecopy: 702-733-5040
(b) If to the Purchaser, to the Purchasers address set forth on
Schedule A
.
Any party may by notice given in accordance with this
Section 6.1
designate another address
or person for receipt of notices hereunder.
6.2
Successors and Assigns
. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto. No Person other than the
parties hereto and their successors and permitted assigns is intended to be a beneficiary of this
Agreement.
6.3
Amendment and Waiver
.
(a) No failure or delay on the part of the Company or any of the Purchaser in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to the Company or the Purchaser at law, in
equity or otherwise.
(b) Any amendment, supplement or modification of or to any provision of this Agreement and any
waiver of any provision of this Agreement shall be effective only if it is made or given in writing
and signed by the Company and the Purchaser.
6.4
Counterparts
. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, all of which when so executed shall be deemed to be an
original and both of which taken together shall constitute one and the same agreement.
6.5
Headings
. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
6.6
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF NEW YORK, IN THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT. TO THE FULLEST EXTENT THEY MAY
Page 20 of 27
EFFECTIVELY DO SO
UNDER APPLICABLE LAW, THE PARTIES HERETO IRREVOCABLY WAIVE AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT THEY ARE NOT SUBJECT TO THE JURISDICTION OF ANY
SUCH COURT, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
6.7
Specific Performance
. The parties hereto intend that each of the parties have the
right to seek damages or specific performance in the event that any other party hereto fails to
perform such partys obligations hereunder. Therefore, if any party shall institute any action or
proceeding to enforce the provisions hereof, any party against whom such action or proceeding is
brought hereby waives any claim or defense therein that the plaintiff party has an adequate remedy
at law.
6.8
Severability
. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
6.9
Entire Agreement; Survival
. This Agreement, together with the schedules hereto
are intended by the parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with respect to such subject
matter. The agreements and covenants contained in this Agreement shall survive the issuance and
purchase of the Securities.
[Agreement Continues on Page 22]
6.10
Further Assurances
. Each of the parties shall execute such documents and perform such
further acts (including, without limitation, obtaining any consents, exemptions, authorizations, or
other actions by, or giving any notices to, or making any filings with, any Governmental Authority
or any other Person) as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their respective officers hereunto duly authorized as of the date first above written.
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the date first above written.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William
P. Weidner
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Name:
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William P. Weidner
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Title:
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President,
Chief Operating Officer and Secretary
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Page 22 of 27
Schedule A
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Aggregate Securities
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Name of Purchaser
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to be Purchased
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Purchase Price
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Address for Notices
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Dr. Miriam Adelson
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5,250,000 shares of
Series A perpetual
preferred stock,
liquidation
preference $100.00
per share
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$
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525,000,000
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c/o Las Vegas Sands Corp.
3555 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Dr. Miriam Adelson
Telecopy: 702-733-5710
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With Copies To:
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Warrants to
purchase 87,500,175
shares of common
stock
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c/o Las Vegas Sands Corp.
3555 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Sheldon G. Adelson
Telecopy: 702-733-5710
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and
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Milbank, Tweed, Hadley & McCloy, LLP
601 S. Figueroa St., 30
th
Floor
Los Angeles, California 90017
Attention: Ken Baronsky, Esq.
Telecopy: 213-892-4733
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Note Redemption and Securities Purchase Agreement
Page 23 of 27
Exhibit A
Form of Certificate of Designations
Page 24 of 27
Exhibit B
Form of Amended and Restated Registration Rights Agreement
Page 25 of 27
Exhibit C
Form of Stockholder Consent
Page 26 of 27
Exhibit D
Form of Warrant Agreement
Page 27 of 27
Exhibit 3.1
CERTIFICATE OF DESIGNATIONS
OF
10% CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
OF
LAS VEGAS SANDS CORP.
LAS VEGAS SANDS CORP.
, a Nevada corporation (the
Corporation
), DOES HEREBY CERTIFY:
The board of directors of the Corporation (the
Board of Directors
), in accordance
with the provisions of the articles of incorporation and the amended and restated bylaws of the
Corporation and applicable law, at a meeting duly called and held on November 10, 2008, adopted the
following resolution creating a series of 10,446,300 shares of Preferred Stock of the Corporation
designated as
10% Cumulative Perpetual Preferred Stock, Series A
.
RESOLVED
, that in accordance with the resolutions of the Board of Directors dated November 10,
2008, the provisions of the articles of incorporation and the amended and restated bylaws of the
Corporation and applicable law, a series of Preferred Stock, par value $0.001 per share, of the
Corporation be and hereby is created, and that the designation and number of shares of such series,
and the voting and other powers, preferences and relative, participating, optional or other rights,
and the qualifications, limitations and restrictions thereof, of the shares of such series, are as
follows:
Section 1. Designation
. The distinctive serial designation of such series of Preferred Stock
is 10% Cumulative Perpetual Preferred Stock, Series A (
Series A
). Each share of Series
A shall be identical in all respects to every other share of Series A.
Section 2. Number of Shares
. The authorized number of shares of Series A shall be 10,446,300.
Shares of Series A that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall revert to authorized but unissued shares of
Preferred Stock (
provided
that any such cancelled shares of Series A may be reissued only as shares
of any series other than Series A).
Section 3. Definitions
. As used herein with respect to Series A:
(a)
Articles of Incorporation
shall mean the articles of incorporation of the
Corporation, as amended from time to time, and shall include this Certificate of Designations.
(b)
ByLaws
means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c)
Business Day
means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are authorized or
obligated by law, regulation or executive order to close.
(d)
Certificate of Designations
means this Certificate of Designations relating to
the Series A, as it may be amended from time to time.
(e)
Common Stock
means the common stock, par value $0.001 per share, of the
Corporation.
(f)
Gaming Authority
means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United States or foreign
government, any state, province or any city or other political subdivision, whether now or
hereafter existing, or any officer or official thereof, including without limitation, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, the Clark County Liquor and Gaming
Licensing Board, the Macau Gaming Authorities, the Pennsylvania Gaming Control Board, the Singapore
Casino Regulatory Authority and any other agency with authority to regulate any gaming operation
(or proposed gaming operation) owned, managed or operated by the Corporation or any of its
subsidiaries.
(g)
Junior Stock
means the Common Stock and any other class or series of stock of
the Corporation (other than Series A) that ranks junior to Series A either or both as to the
payment of dividends and/or as to the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
(h)
Original Issue Date
means November 14, 2008.
(i)
Parity Stock
means any class or series of stock of the Corporation (other than
Series A) that ranks equally with Series A both in the payment of dividends and in the distribution
of assets on any liquidation, dissolution or winding up of the Corporation (in each case without
regard to whether dividends accrue cumulatively or non-cumulatively).
(j)
Preferred Stock
means any and all series of preferred stock of the Corporation,
including the Series A.
(k)
Voting Parity Stock
means, with regard to any matter as to which the holders of
Series A are entitled to vote as specified in Section 8 of this Certificate of Designations, any
and all series of Parity Stock upon which like voting rights have been conferred and are
exercisable with respect to such matter.
(l)
Voting Preferred Stock
means, with regard to any matter as to which the holders
of Series A are entitled to vote as specified in Section 8 of this Certificate of Designations, any
and all series of Preferred Stock (other than Series A) that rank equally with Series A either as
to the payment of dividends or as to the distribution of assets upon liquidation, dissolution or
winding up of the Corporation and upon which like voting rights have been conferred and are
exercisable with respect to such matter.
Section 4. Dividends
.
(a) Rate
. Holders of Series A shall be entitled to receive, on each share of Series A, out of
funds legally available for the payment of dividends under Nevada law, cumulative cash dividends
with respect to each Dividend Period (as defined below) at a per
2
annum rate of 10% on (i) the amount of $100 per share of Series A and (ii) the amount of
accrued and unpaid dividends (including dividends thereon at a per annum rate of 10% to the date of
payment) on such share of Series A, if any (giving effect to (A) any dividends paid through the
Dividend Payment Date (as defined below) that begins such Dividend Period (other than the initial
Dividend Period) and (B) any dividends paid during such Dividend Period). Such dividends shall
begin to accrue and be cumulative from the Original Issue Date, shall compound on each Dividend
Payment Date (i.e., no dividends shall accrue on other dividends unless and until the first
Dividend Payment Date for such other dividends has passed without such other dividends having been
paid on such date) and shall be payable in arrears (as provided below in this Section 4(a)), but
only when, as and if declared by the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors) on each November 15, February 15, May 15 and August
15 (each, a
Dividend Payment Date
), commencing on February 15, 2009;
provided
that (i) in
the event any dividends payable on the Series A are not declared on or prior to and paid on the
applicable Dividend Payment Date, the Board of Directors shall not declare any dividend on any
outstanding Parity Stock, and (ii) if any such Dividend Payment Date would otherwise occur on a day
that is not a Business Day, such Dividend Payment Date shall instead be (and any dividend payable
on Series A on such Dividend Payment Date shall instead be payable on) the immediately succeeding
Business Day. Dividends payable on the Series A in respect of any Dividend Period shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of
dividends accrued on the Series A on any date prior to the end of a Dividend Period, and for the
initial Dividend Period, shall be computed on the basis of a 360-day year consisting of twelve
30-day months, and actual days elapsed over a 30-day month.
Dividends that are payable on Series A on any Dividend Payment Date will be payable to holders
of record of Series A as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date (as originally
scheduled) or such other record date fixed by the Board of Directors or the Committee (or another
duly authorized committee of the Board of Directors) that is not more than 60 nor less than 10 days
prior to such Dividend Payment Date (each, a
Dividend Record Date
). Any such day that is
a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a
Dividend Period
) shall commence on and include a Dividend
Payment Date (other than the initial Dividend Period, which shall commence on and include the
Original Issue Date of the Series A) and shall end on and include the calendar day next preceding
the next Dividend Payment Date. Dividends payable in respect of a Dividend Period shall be payable
in arrears on the first Dividend Payment Date after such Dividend Period.
Holders of Series A shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series A as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends
. So long as any share of Series A remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock,
3
Junior Stock or Parity Stock shall be purchased, redeemed or otherwise acquired for
consideration by the Corporation, directly or indirectly (other than as a result of a
reclassification of Junior Stock for or into other Junior Stock or of Parity Stock for or into
other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, or the
exchange or conversion of one share of Junior Stock for or into another share of Junior Stock or of
one share of Parity Stock for or into another share of Parity Stock (with the same or lesser per
share liquidation amount) or Junior Stock) during a Dividend Period, unless all accrued and unpaid
dividends for all past Dividend Periods, including the latest completed Dividend Period (including,
if applicable as provided in Section 4(a) above, dividends on such amount), on all outstanding
shares of Series A have been declared and paid in full (or declared and a sum sufficient for the
payment thereof has been set aside for the benefit of the holders of shares of Series A on the
applicable record date).
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside
for the benefit of the holders thereof on the applicable record date) on any Dividend Payment Date
(or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment
Dates, on a dividend payment date falling within a Dividend Period related to such Dividend Payment
Date) in full upon the Series A and any shares of Parity Stock, all dividends declared on the
Series A and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends declared shall bear the same
ratio to each other as all accrued and unpaid dividends per share on the Series A (including, if
applicable as provided in Section 4(a) above, dividends on such amount) and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series A shall not be entitled to participate in any such dividends.
Section 5. Liquidation Rights
.
(a) Voluntary or Involuntary Liquidation
. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series A
shall be entitled to receive for each share of Series A, out of the assets of the Corporation or
proceeds thereof (whether capital or surplus) available for distribution to stockholders of the
Corporation, and after satisfaction of all liabilities and obligations to creditors of the
Corporation, before any distribution of such assets or proceeds is made to or set aside for the
holders of Common Stock and any other stock of the Corporation ranking junior to the Series A as to
such distribution, payment in full in an amount equal to the sum of (i) $100 per share and
4
(ii) the accrued and unpaid dividends thereon (including, if applicable as provided in Section
4(a) above, dividends on such amount), whether or not declared, to the date of payment.
(b) Partial Payment
. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series A and all holders of any stock of the Corporation ranking
equally with the Series A as to such distribution, the amounts paid to the holders of Series A and
to the holders of all such other stock shall be paid
pro rata
in accordance with the respective
aggregate Liquidation Preferences of the holders of Series A and the holders of all such other
stock. In any such distribution, the Liquidation Preference of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which
dividends accrue on a cumulative basis, an amount equal to any accrued and unpaid dividends
(including, if applicable, dividends on such amount), whether or not declared, as applicable);
provided
that the Liquidation Preference for any share of Series A shall be determined in
accordance with Section 5(a) above.
(c) Residual Distributions
. If the Liquidation Preference has been paid in full to all
holders of Series A, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation
. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series A receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption
.
(a) Optional Redemption
. On or after November 15, 2011, the Corporation, at its option, may
redeem, in whole at any time or in part from time to time, the shares of Series A at the time
outstanding, upon notice given as provided in Section 6(c) below, at a redemption price equal to
the sum of (i) $110 per share and (ii) the accrued and unpaid dividends thereon (including, if
applicable as provided in Section 4(a) above, dividends on such amount), whether or not declared,
to the redemption date;
provided
that the minimum number of shares of Series A redeemable at any
time is the lesser of (i) 1,000,000 shares of Series A and (ii) the number of shares of Series A
outstanding. The redemption price for any shares of Series A shall be payable on the redemption
date to the holder of such shares against surrender of the certificate(s) evidencing such shares to
the Corporation or its agent. Any declared but unpaid dividends payable on a redemption date that
occurs subsequent to the Dividend Record Date for a Dividend Period shall not be paid to the holder
entitled to receive the redemption price on the redemption date, but rather shall be paid to the
holder of record of the redeemed shares on such Dividend Record Date relating to the Dividend
Payment Date. All other accrued but unpaid dividends (including, in the case of a redemption date
that occurs subsequent to a regularly scheduled
5
Dividend Record Date for a Dividend Period in which a dividend is not declared) shall be paid
to the holder entitled to receive the redemption price.
(b) No Sinking Fund
. The Series A will not be subject to any mandatory redemption, sinking
fund or other similar provisions, except as provided in Section 6(f). Holders of Series A will
have no right to require redemption of any shares of Series A.
(c) Notice of Redemption
. Notice of every redemption of shares of Series A shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series A designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series A. Notwithstanding the foregoing, if the Series A are issued in book-entry form
through The Depository Trust Company or any other similar facility, notice of redemption may be
given to the holders of Series A at such time and in any manner permitted by such facility. Each
notice of redemption given to a holder shall state: (1) the redemption date; (2) the number of
shares of Series A to be redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and
(4) the place or places where certificates for such shares are to be surrendered for payment of the
redemption price.
(d) Partial Redemption
. In case of any redemption of part of the shares of Series A at the
time outstanding, the shares to be redeemed shall be selected either
pro rata
or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series A shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption
. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
deposited by the Corporation, in trust for the
pro rata
benefit of the holders of the shares called
for redemption, with a bank or trust company doing business in the Borough of Manhattan, The City
of New York, and having a capital and surplus of at least $50 million and selected by the Board of
Directors, so as to be and continue to be available solely therefor, then, notwithstanding that any
certificate for any share so called for redemption has not been surrendered for cancellation, on
and after the redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith on such redemption date cease and terminate,
except only the right of the holders thereof to receive the amount payable on such redemption from
such bank or trust company, without interest. Any funds unclaimed at the end of three years from
the redemption date shall, to the extent permitted by law, be released to the Corporation, after
which time the holders of the shares so called for
6
redemption shall look only to the Corporation for payment of the redemption price of such
shares.
(f) Mandatory Redemption.
Notwithstanding anything to the contrary, if any Gaming Authority
requires that a holder or beneficial owner of the Series A must be licensed, qualified or found
suitable under any applicable gaming laws in order to maintain any gaming license or franchise of
the Corporation or any of its subsidiaries under any applicable gaming laws, and the holder or
beneficial owner fails to apply for a license, qualification or finding of suitability within 30
days after being requested to do so by the Gaming Authority (or within such period that may be
required by such Gaming Authority) or if such holder or beneficial owner is denied such license or
qualification or found not to be suitable, the Corporation shall have the right, at its option, (1)
to require such holder or beneficial owner to dispose of such holders or beneficial owners Series
A within 30 days of receipt of such finding by the applicable Gaming Authority (or such time as may
be required by the applicable Gaming Authority) or (2) to call for redemption the Series A of such
holder or beneficial owner at a redemption price equal to (i) the lesser of (a) the price at which
such holder or beneficial owner acquired the Series A or (b) the fair market value of the Series A
as determined in good faith by the Board of Directors, together with, in each case, accrued and
unpaid dividends to the earlier of the date of redemption or such earlier date as may be required
by the Gaming Authority or the date of the finding of unsuitability by such Gaming Authority if so
ordered by such Gaming Authority or (ii) such other price as may be ordered by the Gaming
Authority. Immediately upon a determination that a holder or beneficial owner will not be
licensed, qualified or found suitable, the holder or beneficial owner will have no further rights
(a) to exercise any right conferred by the Series A, directly or indirectly, through any trustee,
nominee or any other person or (b) to receive any interest or other distribution or payment with
respect to the Series A except the redemption price of the Series A described in this paragraph;
provided
,
however
, such holder or beneficial holder may, to the extent permitted by such Gaming
Authority, transfer the Series A to any unaffiliated third party, who shall then be entitled to
exercise all rights of a holder or beneficial holder under the Series A. The Corporation is not
required to pay or reimburse any holder of Series A or beneficial owner who is required to apply
for such license, qualification or finding of suitability for the costs of the licensure or
investigation for such qualification or finding of suitability. Such expenses will, therefore, be
the obligation of such holder or beneficial owner.
Section 7. Conversion
. Holders of Series A shares shall have no right to exchange or convert
such shares into any other securities.
Section 8. Voting Rights
.
(a) General
. The holders of Series A shall not have any voting rights except as set forth
below or as otherwise from time to time required by law.
(b) Class Voting Rights as to Particular Matters
. So long as any shares of Series A are
outstanding, in addition to any other vote or consent of stockholders required by law or by the
Articles of Incorporation, the vote or consent of the holders of at least 66
2
/
3
% of the shares of
Series A and any Voting Preferred Stock at the time outstanding and entitled to vote thereon,
voting together as a single class, given in person or by proxy, either in writing without a
7
meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Authorization of Senior Stock
. Any amendment or alteration of the Articles of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series A with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series A
. Any amendment, alteration or repeal of any provision of
the Articles of Incorporation so as to materially and adversely affect the special rights,
preferences, privileges or voting powers of the Series A, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations
. Any consummation
of a binding share exchange or reclassification involving the Series A, or of a merger or
consolidation of the Corporation with another corporation or other entity, unless in each
case (x) the shares of Series A remain outstanding or, in the case of any such merger or
consolidation with respect to which the Corporation is not the surviving or resulting
entity, are converted into or exchanged for preference securities of the surviving or
resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights, preferences, privileges and
voting powers, and limitations and restrictions thereof, taken as a whole, as are not
materially less favorable to the holders thereof than the rights, preferences, privileges
and voting powers, and limitations and restrictions thereof, of the Series A immediately
prior to such consummation, taken as a whole;
provided
,
however
, that for all purposes of this Section 8(b), any increase in the amount of the
authorized Preferred Stock, or the creation and issuance, or an increase in the authorized or
issued amount, of any other series of Preferred Stock ranking equally with and/or junior to the
Series A with respect to the payment of dividends (whether such dividends are cumulative or
non-cumulative) and/or the distribution of assets upon liquidation, dissolution or winding up of
the Corporation will not be deemed to adversely affect the rights, preferences, privileges or
voting powers of the Series A.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 8(b) would adversely affect the Series A and one or more
but not all other series of Preferred Stock, then only the Series A and such series of Preferred
Stock as are adversely affected by and entitled to vote on the matter shall vote on the matter
together as a single class (in lieu of all other series of Preferred Stock).
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 8(b) would adversely affect the Series A but would not
similarly adversely affect all other series of Voting Parity Stock, then only the Series A and each
other series of Voting Parity Stock as is similarly adversely affected by and entitled to vote on
the matter, if any, shall vote on the matter together as a single class (in lieu of all other
series of Preferred Stock).
8
(c) Series A Voting Rights as to Particular Matters
. In addition to any other vote or consent
of stockholders required by law or by the Articles of Incorporation, so long as at least 1,000,000
shares of Series A are outstanding, the vote or consent of the holders of at least a majority of
the shares of Series A at the time outstanding, voting in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
(i) Authorization or Issuance of Senior Stock
. Any amendment or alteration of the
Articles of Incorporation to authorize or create, or increase the authorized amount of, any shares of any class or series of capital stock of the Corporation, or the issuance of any
shares of any class or series of capital stock of the Corporation, in each case, ranking
senior to the Series A with respect to either or both the payment of dividends and/or the
distribution of assets on any liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series A
. Any amendment, alteration or repeal of any provision of
the Articles of Incorporation so as to affect or change the rights, preferences, privileges
or voting powers of the Series A so as not to be substantially similar to those in effect
immediately prior to such amendment, alteration or repeal,
provided, however,
that no
amendment, alteration or repeal shall be made that has a disproportionate effect on any
holder of Series A without the consent of such holder; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations
. Any consummation
of a binding share exchange or reclassification involving the Series A, or of a merger or
consolidation of the Corporation with another corporation or other entity, unless in each
case (x) the shares of Series A remain outstanding or, in the case of any such merger or
consolidation with respect to which the Corporation is not the surviving or resulting
entity, are converted into or exchanged for preference securities of the surviving or
resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights, preferences, privileges and
voting powers, and limitations and restrictions thereof as are substantially similar to the
rights, preferences, privileges and voting powers, and limitations and restrictions of the
Series A immediately prior to such consummation;
provided
,
however
, that for all purposes of this Section 8(c), the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series A with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers of the Series A.
(d) Changes after Provision for Redemption
. No vote or consent of the holders of Series A
shall be required pursuant to Section 8(b) or (c) above if, at or prior to the time when any such
vote or consent would otherwise be required pursuant to such Section, all outstanding shares of
Series A (or, in the case of Section 8(c), more than 9,000,000 shares of Series A) shall have been
redeemed, or shall have been called for redemption upon proper notice
9
and sufficient funds shall have been deposited in trust for such redemption, in each case
pursuant to Section 6 above.
(e) Election of Directors.
If and whenever an amount equal to six full quarterly dividends,
whether or not consecutive, payable on any class or series of Preferred Stock, including the Series
A, are not paid or otherwise declared and set aside for payment, the holders of the Series A and
Preferred Stock with similar rights to elect directors in the event dividends are not paid or
otherwise set aside for payment that have also been triggered as a result of the failure by the
Corporation to pay dividends on any class or series of Preferred Stock (the
Voting
Shares
), voting as a single class, shall be entitled to increase the authorized number of
directors on the Board of Directors by two and elect such two additional directors to the Board of
Directors at the next annual meeting or special meeting. Not later than 40 days after the
entitlement arises, the Board of Directors will convene a special meeting of the holders of the
Voting Shares for the purpose of electing the additional two directors. If the Board of Directors
fails to convene such meeting within such 40-day period, then holders of 10% of the outstanding
shares of the Voting Shares, taken as single class, may call the meeting. If all accrued,
cumulated and unpaid dividends in default on the Preferred Stock have been paid in full or declared
and set apart for payment, the holders of the Voting Shares will no longer have the right to vote
on directors and the term of office of each director so elected will terminate immediately and the
authorized number of the Corporations directors will, without further action, be reduced
accordingly.
(f) Procedures for Voting and Consents
. The rules and procedures for calling and conducting
any meeting of the holders of Series A (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules of the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors), in its discretion, may adopt from time to time,
which rules and procedures shall conform to the requirements of the Articles of Incorporation, the
Bylaws, and applicable law and the rules of any national securities exchange or other trading
facility on which the Series A is listed or traded at the time. Whether the vote or consent of the
holders of a plurality, majority or other portion of the shares of Series A and any Voting
Preferred Stock has been cast or given on any matter on which the holders of shares of Series A are
entitled to vote shall be determined by the Corporation by reference to the specified liquidation
amount of the shares voted or covered by the consent (
provided
that the specified liquidation
amount for any share of Series A shall be the Liquidation Preference for such share) as if the
Corporation were liquidated on the record date for such vote or consent, if any, or, in the absence
of a record date, on the date for such vote or consent.
Section 9. Record Holders
. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series A may deem and treat the record holder of any share of Series
A as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices
. All notices or communications in respect of Series A shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this Certificate of
10
Designations, in the Articles of Incorporation or Bylaws or by applicable law.
Notwithstanding the foregoing, if the Series A are issued in book-entry form through The Depository
Trust Company or any similar facility, such notices may be given to the holders of Series A in any
manner permitted by such facility.
Section 11. No Preemptive Rights
. No share of Series A shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Replacement Certificates
. The Corporation shall replace any mutilated certificate
at the holders expense upon surrender of that certificate to the Corporation. The Corporation
shall replace certificates that become destroyed, stolen or lost at the holders expense upon
delivery to the Corporation of reasonably satisfactory evidence that the certificate has been
destroyed, stolen or lost, together with any indemnity that may be reasonably required by the
Corporation.
Section 13. Other Rights
. The shares of Series A shall not have any rights, preferences,
privileges or voting powers or relative, participating, optional or other special rights, or
qualifications, limitations or restrictions thereof, other than as set forth herein or in the
Articles of Incorporation or as provided by applicable law.
In Witness Whereof
, LAS VEGAS SANDS CORP. has caused this certificate to be signed by
William P. Weidner, its President, Chief Operating Officer and Secretary, this ___ day of November,
2008.
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LAS VEGAS SANDS CORP.
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By
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating Officer and Secretary
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11
Exhibit 10.1
EXECUTION COPY
LAS VEGAS SANDS CORP.
and
U.S. BANK NATIONAL ASSOCIATION
WARRANT AGREEMENT
Dated as
of November 14, 2008
WARRANT AGREEMENT
TABLE OF CONTENTS
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Page
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SECTION 1.
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APPOINTMENT OF WARRANT AGENT
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1
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SECTION 2.
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WARRANT CERTIFICATES
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1
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SECTION 3.
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EXECUTION OF WARRANT CERTIFICATES
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1
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SECTION 4.
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REGISTRATION AND COUNTERSIGNATURE
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2
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SECTION 5.
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REGISTRATION OF TRANSFERS AND EXCHANGES
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2
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SECTION 6.
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TERMS OF WARRANTS; EXERCISE OF WARRANTS
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2
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SECTION 7.
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PAYMENT OF TAXES
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6
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SECTION 8.
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MUTILATED OR MISSING WARRANT CERTIFICATES
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7
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SECTION 9.
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RESERVATION OF WARRANT SHARES
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7
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SECTION 10.
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OBTAINING STOCK EXCHANGE LISTINGS
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7
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SECTION 11.
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ADJUSTMENTS AND OTHER RIGHTS
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8
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SECTION 12.
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FRACTIONAL INTERESTS
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11
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SECTION 13.
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NOTICES TO WARRANT HOLDERS
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12
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SECTION 14.
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MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT
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13
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SECTION 15.
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WARRANT AGENT
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13
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SECTION 16.
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CHANGE OF WARRANT AGENT
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15
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SECTION 17.
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NOTICES TO COMPANY AND WARRANT AGENT
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15
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SECTION 18.
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SUPPLEMENTS AND AMENDMENTS
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16
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SECTION 19.
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SUCCESSORS
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16
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SECTION 20.
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TERMINATION
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16
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SECTION 21.
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GOVERNING LAW
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16
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SECTION 22.
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BENEFITS OF THIS AGREEMENT
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16
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SECTION 23.
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COUNTERPARTS
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17
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i
WARRANT AGREEMENT dated as of November 14, 2008 between Las Vegas Sands Corp., a Nevada
corporation (the
Company
), and U.S. Bank National Association, a national banking association
organized under the laws of the United States, as Warrant Agent (the
Warrant Agent
).
WHEREAS, the Company proposes to issue Common Stock Purchase Warrants, as hereinafter
described (the
Warrants
), to purchase up to an aggregate of 174,105,348 shares of Common Stock,
$0.001 par value (the
Common Stock
), of the Company (the Common Stock issuable on exercise of the
Warrants being referred to herein as the
Warrant Shares
), in connection with a registered
offering of 10,446,300 shares of the Companys Series A Cumulative Perpetual Preferred Stock and
10,446,300 Warrants, each warrant entitling the holder thereof to receive 16.6667 fully paid and
non-assessable Warrant Shares at the initial exercise price (the
Exercise Price
) of $6.00 per
share. Capitalized terms used herein, but not defined in the body of this Warrant Agreement, have
the meanings given in
Annex I
;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance of Warrant Certificates (as
defined below) and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1.
Appointment of Warrant Agent
. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance
with the instructions set forth in this Agreement, and the Warrant Agent hereby accepts such
appointment.
SECTION 2.
Warrant Certificates
. The certificates evidencing the Warrants (the
Warrant Certificates
) to be delivered
pursuant to this Agreement shall be in registered form only and shall be substantially in the form
set forth in
Exhibit A
attached hereto.
SECTION 3.
Execution of Warrant Certificates
. Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board
of Directors or its President or a Vice President and by its Secretary or an Assistant Secretary
under its corporate seal. Each such signature upon the Warrant Certificates may be in the form of
a facsimile signature of the present or any future Chairman of the Board of Directors, President,
Vice President, Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on
the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature
of any person who shall have been Chairman of the Board, President, Vice President, Secretary or
Assistant Secretary, notwithstanding the fact that at the time the Warrant Certificates shall be
countersigned and delivered or disposed of he shall have ceased to hold such office. The seal of
the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of the Warrant Certificates shall
cease to be such officer before the Warrant Certificates so signed shall have been countersigned by
the Warrant Agent, or disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such
person had not ceased to be such officer
of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of
the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
Warrant Certificates shall be dated the date of countersignature by the Warrant Agent.
SECTION 4.
Registration and Countersignature
. The Warrant Agent, on behalf of the Company, shall number and register the Warrant
Certificates in a register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Warrant Agent shall, upon written instructions
of the Chairman of the Board of Directors, the President, a Vice President, the Treasurer or the
Controller of the Company, initially countersign, issue and deliver Warrants entitling the holders
thereof to purchase not more than the number of Warrant Shares referred to above in the first
recital hereof and shall countersign and deliver Warrants as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the registered holder(s) of the Warrant
Certificates as the absolute owner(s) thereof (notwithstanding any notation of ownership or other
writing thereon made by anyone), for all purposes, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
SECTION 5.
Registration of Transfers and Exchanges
. The Warrant Agent shall from time to time register the transfer of any outstanding Warrant
Certificates upon the records to be maintained by it for that purpose, upon surrender thereof
accompanied (if so required by it) by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent, duly executed by the registered holder or holders thereof or by
the duly appointed legal representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the transferee(s) and the
surrendered Warrant Certificate shall be cancelled by the Warrant Agent. Cancelled Warrant
Certificates shall thereafter be disposed of in a manner satisfactory to the Company.
Warrant Certificates may be exchanged at the option of the holder(s) thereof, when surrendered
to the Warrant Agent at its office for another Warrant Certificate or other Warrant Certificates of
like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates
surrendered for exchange shall be cancelled by the Warrant Agent. Such
cancelled Warrant Certificates shall then be disposed of by such Warrant Agent in a manner
satisfactory to the Company.
The Warrant Agent is hereby authorized to countersign, in accordance with the provisions of
this Section 5 and of Section 4, the new Warrant Certificates required pursuant to the provisions
of this Section 5.
SECTION 6.
Terms of Warrants; Exercise of Warrants
.
2
(a) Subject to the terms of this Agreement, each Warrant holder shall have the right, which
may be exercised commencing on the date hereof and until 5:00 p.m., New York City time on November
16, 2013 (the
Exercise Period
) to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the holder may at the time be entitled to receive on exercise of
such Warrants and payment of the Exercise Price, in the manner described below, then in effect for
such Warrant Shares;
provided
,
however
that any Warrants originally issued by the Company to any
Related Party on the date hereof (the
Affiliate Warrants
) may not be exercised until the Warrant
Exercise Date (as defined in the Note Conversion and Securities Purchase Agreement).
(b) Promptly after the Warrant Exercise Date, the Company shall notify the Warrant Agent of
the date of such Warrant Exercise Date and that the Affiliate Warrants are exercisable as of such
Warrant Exercise Date.
Each Warrant not exercised prior to 5:00 p.m., New York City time, on November 16, 2013, shall
become void and all rights thereunder and all rights in respect thereof under this agreement shall
cease as of such time. No adjustments as to dividends will be made upon exercise of the Warrants.
A Warrant may be exercised upon surrender to the Company at the principal office of the
Warrant Agent of the certificate or certificates evidencing the Warrants to be exercised with the
form of election to purchase on the reverse thereof duly filled in and signed, which signature
shall be guaranteed by a bank or trust company having an office or correspondent in the United
States or a broker or dealer which is a member of a registered securities exchange or the Financial
Industry Regulatory Authority, Inc., and upon payment to the Warrant Agent for the account of the
Company of the Exercise Price as adjusted as herein provided, for the number of Warrant Shares in
respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall
be made, at the option of the holder exercising a Warrant, by either (i) paying an amount in cash
equal to the aggregate Exercise Price by wire transfer or by certified or official bank check
payable to the Companys order (the
Cash Exercise Option
), (ii) tendering shares of Series A
Cumulative Perpetual Preferred Stock having an aggregate liquidation preference, plus, without
duplication, accumulated and unpaid dividends through the last scheduled dividend payment date
(whether or not declared), at the time of tender equal to the Exercise Price (the
Preferred
Exercise Option
), or (iii) having the Company withhold, from the shares of Common Stock that would
otherwise be delivered to the holder of the Warrant upon exercise, shares of Common Stock with an
aggregate Market Value equal to the aggregate Exercise Price (the
Net Share Exercise Option
). The date on which a
holder surrenders the Warrant Certificates and accompanying form of election and pays the aggregate
Exercise Price through any of the three options set forth above shall be the
Exercise Date
.
The
Market Value
of a share of Common Stock is equal to the average of the daily VWAPs of
such common stock for each day of the related observation period.
The
observation period
with respect to any Warrant means the 20 consecutive trading day
period beginning on and including the third trading day after the Exercise Date of such Warrant.
3
The
daily VWAP
for the Common Stock of the Company means, for each of the 20 consecutive
trading days during the observation period, the per share volume-weighted average price as
displayed under the heading Bloomberg VWAP on Bloomberg page LVS.N <equity> AQR (or any
successor page) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such
trading day, or if such volume-weighted average price is unavailable, the market value of one share
of Common Stock on such trading day as the Board of Directors determines in good faith using a
volume-weighted method.
For purposes of determining the payment of the Exercise Price,
trading day
means a day
during which (i) trading in the Common Stock generally occurs on the principal U.S. national or
regional securities exchange or market on which the Common Stock is listed or admitted for trading
and (ii) there is no Market Disruption Event. If the Common Stock is not so listed or traded, then
trading day
means a Business Day.
Market disruption event
means (i) a failure by the principal U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted for trading to open
for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00
p.m. New York City time, on any scheduled trading day for the Common Stock for an aggregate of one
half-hour period of any suspension or limitation imposed on trading (by reason or movements in
price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any
options contracts or futures contracts relating to Common Stock.
(c) Notwithstanding the foregoing, other than with respect to any Affiliate Warrants held by
any Related Party, the Company shall not effect the exercise or conversion of any Warrant held by a
Warrant holder, and such Warrant holder shall not have the right to exercise or convert any portion
of such Warrant, to the extent (but only to the extent) that after giving effect to such exercise
or conversion, such Warrant holder would become the owner of 5.0% or more of the number of shares
of Common Stock outstanding immediately after giving effect to such conversion, unless (i) such
Warrant holder is an institutional investor or qualifies under any other exemption from licensing
or finding of suitability as may be required from time to time under the applicable gaming
regulations of the State of Pennsylvania; or (ii) such Warrant holder has either (a) complied with
any license requirements or (b) obtained a waiver from the licensing requirements, under the gaming
regulations of the State of Pennsylvania.
For any reason at any time, upon the written or oral request of the Warrant holder, the Company shall within one trading day confirm orally and in writing to the Warrant holder
the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the exercise or conversion of the
Warrants by the Warrant holder or its affiliates since the date as of which such number of
outstanding shares was reported.
(d) Subject to the provisions of Section 7 hereof, upon the surrender of Warrants and payment
of the Exercise Price, the Company shall issue and cause to be delivered to or to the written order
of the holder of the Warrant and in such name or names as the holder of the Warrant may designate,
a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of
such Warrants (reduced as described above in the case of a Net Share Exercise Option) together with
cash, to the extent applicable, as provided in Section 12, (i)
4
in the case of the Cash Exercise
Option or the Preferred Exercise Option, on the third Business Day following the Exercise Date and
(ii) in the case of the Net Share Exercise Option, on the third scheduled trading Business Day
immediately following the last day of the applicable observation period. Such certificate or
certificates shall be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of the date of the
surrender of such Warrants and payment of the Exercise Price.
Notwithstanding anything to the contrary, the aggregate number of Warrant Shares in connection
with the exercise of the Warrants issued under this Agreement shall not exceed 174,105,359 (the
Share Cap
). The Share Cap shall be adjusted in the same manner and at the same time as the
number of Warrant Shares issuable upon exercise of each Warrant pursuant to Section 11 herein.
The Warrants shall be exercisable, at the election of the holders thereof, either in full or
from time to time in part and, in the event that a certificate evidencing Warrants is exercised in
respect of fewer than all of the Warrant Shares issuable on such exercise at any time prior to the
date of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants
will be issued, and the Warrant Agent is hereby irrevocably authorized to countersign and to
deliver the required new Warrant Certificate or Certificates pursuant to the provisions of this
Section and of Section 3 hereof, and the Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates duly executed on behalf of the Company for such
purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be cancelled by the
Warrant Agent. Such cancelled Warrant Certificates shall then be disposed of by the Warrant Agent
in a manner satisfactory to the Company. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay or deliver to the Company all monies or
securities received by the Warrant Agent for the purchase of the Warrant Shares through the
exercise of such Warrants.
The Warrant holder shall not be required to physically surrender Warrant Certificates upon
exercise or conversion of Warrants, except as provided in the immediately succeeding sentence. If
the Warrant holder is exercising or converting all of the Warrants represented by a Warrant
Certificate, the Warrant holder shall physically surrender the original copy of such Warrant Certificate (or a customary certificate of lost warrant certificate to
the Company promptly (but in no event later than five trading days) after such purchase. The
Warrant Agent, as agent for the Company, shall maintain records showing the number of Warrant
Shares purchased pursuant to the exercise or conversion of the Warrants issued hereunder and the
dates of such exercises and conversions, or shall use such other method, reasonably satisfactory to
the Warrant holders and the Company, so as not to require physical surrender of Warrant
Certificates upon the exercise or conversion of Warrants. The Warrant holder and any assignee, by
acceptance of the Warrant Certificate or any new Warrant Certificate, acknowledge and agree that,
by reason of the provisions of this Section 6, following exercise or conversion of any portion of
the Warrants represented by a Warrant Certificate, the number of Warrant Shares which may be
purchased upon exercise may be less than the number of Warrant Shares set forth on the face of the
Warrant Certificate.
5
The Warrant Agent shall keep copies of this Agreement and any notices given or received
hereunder available for inspection by the Warrant holders during normal business hours at its
office. The Company shall supply the Warrant Agent from time to time with such numbers of copies
of this Agreement as the Warrant Agent may request.
(e) Notwithstanding any other provision in this Warrant Agreement, if any gaming authority
requires that a holder or beneficial owner of the Warrants must be licensed, qualified or found
suitable under any applicable gaming laws in order to maintain any gaming license or franchise of
the Company or any of its subsidiaries under any applicable gaming laws, and the holder or
beneficial owner fails to apply for a license, qualification or finding of suitability within 30
days after being requested to do so by the gaming authority (or within such period that may be
required by such gaming authority) or if such holder or beneficial owner is denied such license or
qualification or found not to be suitable, the Company shall have the right, at its option, (1) to
require such holder or beneficial owner to dispose of such holders or beneficial owners Warrants
within 30 days of receipt of such finding by the applicable gaming authority (or such time as may
be required by the applicable gaming authority) or (2) to call for redemption the Warrants of such
holder or beneficial owner at a redemption price equal to (i) the lesser of (a) the price at which
such holder or beneficial owner acquired the Warrants or (b) the fair market value of the Warrants
as determined in good faith by the Board of Directors of the Company or (ii) such other price as
may be ordered by the gaming authority. Immediately upon a determination that a holder or
beneficial owner will not be licensed, qualified or found suitable, the holder or beneficial owner
shall have no further rights (a) to exercise any right conferred by the Warrants, directly or
indirectly, through any trustee, nominee or any other person or (b) to receive any interest or
other distribution or payment with respect to the Warrants except the redemption price of the
Warrants described in this paragraph;
provided
,
however
, such holder or beneficial holder may, to
the extent permitted by such gaming authority, transfer the Warrants to any unaffiliated third
party, who shall then be entitled to exercise all rights of a holder or beneficial holder under the
Warrants. Under the Warrant Agreement, the Company is not required to pay or reimburse any holder
of Warrants or beneficial owner who is required to apply for such license, qualification or finding
of suitability for the costs of the licensure or investigation for such qualification or finding of
suitability. Such expenses will, therefore, be the obligation of such holder or beneficial owner.
Gaming authority
means any agency, authority, board, bureau, commission, department, office
or instrumentality of any nature whatsoever of the United States or foreign government, any state,
province or any city or other political subdivision, whether now or hereafter existing, or any
officer or official thereof, including without limitation, the Nevada Gaming Commission, the Nevada
State Gaming Control Board, the Clark County Liquor and Gaming Licensing Board, the Macau Gaming
Authorities, the Pennsylvania Gaming Control Board, the Singapore Casino Regulatory Authority and
any other agency with authority to regulate any gaming operation (or proposed gaming operation)
owned, managed or operated by the Company or any of its subsidiaries.
SECTION 7.
Payment of Taxes
. The Company will pay all documentary stamp taxes attributable to the initial issuance of
Warrant Shares upon the exercise of Warrants;
provided
,
however
, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any
6
certificates for Warrant Shares in a name
other than that of the registered holder of a Warrant Certificate surrendered upon the exercise of
a Warrant, and the Company shall not be required to issue or deliver such Warrant Certificates
unless or until the person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
SECTION 8.
Mutilated or Missing Warrant Certificates
. In case any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its reasonable discretion (not to be unreasonably withheld, conditioned or delayed)
issue and the Warrant Agent may countersign, in exchange and substitution for and upon cancellation
of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent
number of Warrants, but only upon receipt of evidence reasonably satisfactory to the Company and
the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and indemnity, if
requested, also reasonably satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe.
SECTION 9.
Reservation of Warrant Shares
. The Company will at all times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon exercise of Warrants, the maximum number of shares of Common Stock which may
then be deliverable upon the exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common Stock (the
Transfer Agent
)
and every subsequent transfer agent for any shares of the Companys Capital Stock issuable upon the
exercise of any of the rights of purchase aforesaid will be irrevocably authorized and directed at all times to reserve such number of authorized shares as shall be
required for such purpose. The Company will keep a copy of this Agreement on file with the Transfer
Agent and with every subsequent transfer agent for any shares of the Companys Capital Stock
issuable upon the exercise of the rights of purchase represented by the Warrants. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from such Transfer Agent
the stock certificates required to honor outstanding Warrants upon exercise thereof in accordance
with the terms of this Agreement. The Company will supply such Transfer Agent with duly executed
certificates for such purposes and will provide or otherwise make available any cash which may be
payable as provided in Section 12. The Company will furnish such Transfer Agent a copy of all
notices of adjustments and certificates related thereto, transmitted to each holder pursuant to
Section 13 hereof.
The Company covenants that all Warrant Shares which may be issued upon exercise of Warrants
will, upon issue, be duly authorized, fully paid, nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests with respect to the issue thereof.
SECTION 10.
Registration under the Securities Act; Obtaining Stock Exchange Listings
. The Company shall use its commercially reasonable efforts to keep a shelf registration
7
statement continuously effective under the Securities Act providing for the registration of, and
the issuance on a continuous or delayed basis by the Company of, Warrant Shares to be issued upon
exercise of Warrants pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Securities and Exchange Commission;
provided
,
however
, that the Company may
suspend the use of the shelf registration statement for the registration of any Warrant Shares,
without incurring any additional obligations to the holders of the Warrants, for a period not to
exceed 90 consecutive days or an aggregate of 120 days in any 12-month period if the Company shall
have determined in good faith that because of valid business reasons (not including the avoidance
of the Companys obligations hereunder), including the acquisition and divestiture of assets,
pending corporate developments, public filings with the Securities and Exchange Commission and
similar events, it is in the best interests of the Company to suspend the use of such shelf
registration statement. If a shelf registration statement is not available for the registration
and issuance of Warrant Shares upon exercise of Warrants, this shall not relieve any obligation of
the Company to deliver Warrant Shares upon the exercise of Warrants, even if they are not
registered under the Securities Act.
The Company shall from time to time take all action which may be necessary so that the Warrant
Shares, immediately upon their issuance upon the exercise of Warrants, will be listed on the
principal securities exchanges and markets within the United States of America, if any, on which
other shares of Common Stock are then listed.
SECTION 11.
Adjustments and Other Rights
. The Exercise Price and the number of Warrant Shares issuable upon exercise of each Warrant
shall be subject to adjustment from time to time as follows;
provided
, that if more than one
subsection of this Section 11 is applicable to a single event, the subsection shall be applied that produces the largest adjustment and no single event shall cause an adjustment
under more than one subsection of this Section 11 so as to result in duplication:
(a)
Stock Splits, Subdivisions, Reclassifications or Combinations
. If the Company
shall (i) declare and pay a dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify the outstanding shares of Common Stock into a smaller number
of shares, the number of Warrant Shares issuable upon exercise of each Warrant at the time of the
record date for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the holder of a Warrant
after such date shall be entitled to purchase the number of shares of Common Stock which such
holder would have owned or been entitled to receive in respect of the shares of Common Stock
subject to the Warrant after such date had the Warrant been exercised immediately prior to such
date. In such event, the Exercise Price in effect at the time of the record date for such dividend
or distribution or the effective date of such subdivision, combination or reclassification shall be
adjusted to the number obtained by dividing (x) the product of (1) the number of Warrant Shares
issuable upon the exercise of the Warrant before such adjustment and (2) the Exercise Price in
effect immediately prior to the record or effective date, as the case may be, for the dividend,
distribution, subdivision, combination or reclassification giving rise to this adjustment by (y)
the new number of Warrant Shares issuable upon exercise of the Warrant determined pursuant to the
immediately preceding sentence.
8
(b)
Certain Issuances of Common Shares or Convertible Securities
. If the Company
shall issue shares of Common Stock (or rights or warrants or other securities exercisable or
convertible into or exchangeable (collectively, a
conversion
) for shares of Common Stock)
(collectively,
convertible securities
) (other than in Permitted Transactions or a transaction to
which subsection (a) of this Section 11 is applicable) without consideration or at a consideration
per share (or having a conversion price per share) that is less than 95% of the Closing Price on
the last trading day preceding the date of the agreement on pricing such shares (or such
convertible securities) then, in such event:
(A) the number of Warrant Shares issuable upon the exercise of each Warrant
immediately prior to the date of the agreement on pricing of such shares (or
of such convertible securities) (the
Initial Number
) shall be increased to
the number obtained by multiplying the Initial Number by a fraction (A) the
numerator of which shall be the sum of (x) the number of shares of Common
Stock of the Company outstanding on such date and (y) the number of
additional shares of Common Stock issued (or into which convertible
securities may be exercised or convert) and (B) the denominator of which
shall be the sum of (I) the number of shares of Common Stock outstanding on
such date and (II) the number of shares of Common Stock which the aggregate
consideration receivable by the Company for the total number of shares of
Common Stock so issued (or into which convertible securities may be
exercised or convert) would purchase at the Closing Price on the last
trading day preceding the date of the agreement on pricing such shares (or
such convertible securities); and
(B) the Exercise Price payable upon exercise of each Warrant shall be
adjusted by multiplying such Exercise Price in effect immediately prior to
the date of the agreement on pricing of such shares (or of such convertible
securities) by a fraction, the numerator of which shall be the number of shares of Common Stock issuable upon exercise of each Warrant prior to such
date and the denominator of which shall be the number of shares of Common
Stock issuable upon exercise of each Warrant immediately after the
adjustment described in clause (A) above.
For purposes of the foregoing, the aggregate consideration receivable by the Company in
connection with the issuance of such shares of Common Stock or convertible securities shall be
deemed to be equal to the sum of the net offering price (after deduction of any related expenses
payable to third parties) of all such securities plus the minimum aggregate amount, if any, payable
upon exercise or conversion of any such convertible securities into shares of Common Stock; and
Permitted Transactions
shall include issuances (i) as consideration for or to fund the
acquisition of businesses and/or related assets, (ii) in connection with employee benefit plans and
compensation related arrangements approved by the Board of Directors; and (iii) in connection with
a broadly marketed offering and sale of Common Stock or convertible securities for cash conducted
by the Company; and (iv) pursuant to the over-allotment option granted pursuant to the Underwriting
Agreement, dated November 10, 2008 (the
Underwriting Agreement
), of up to 18,181,818 shares of
Common Stock at the public offering price less the underwriting discount, as specified in the
Underwriting Agreement. Any
9
adjustment made pursuant to this Section 11(b) shall become effective
immediately upon the date of such issuance.
(c)
Other Distributions
. In case the Company shall fix a record date for the making
of a distribution to all holders of shares of its Common Stock of securities, evidences of
indebtedness, assets, cash, rights or warrants (excluding dividends of its Common Stock and other
dividends or distributions referred to in Section 11(a)), in each such case, the Exercise Price in
effect prior to such record date shall be reduced immediately thereafter to the price determined by
multiplying the Exercise Price in effect immediately prior to the reduction by the quotient of (x)
the Closing Price of the Common Stock on the last trading day preceding the first date on which the
Common Stock trades regular way on the New York Stock Exchange without the right to receive such
distribution, minus the amount of cash or the Fair Market Value of the securities, evidences of
indebtedness, assets, rights or warrants to be so distributed in respect of one share of Common
Stock (the
Per Share Fair Market Value
) divided by (y) such Closing Price on such date specified
in clause (x); such adjustment shall be made successively whenever such a record date is fixed. In
such event, the number of Warrant Shares issuable upon the exercise of each Warrant shall be
increased to the number obtained by dividing (x) the product of (1) the number of Warrant Shares
issuable upon the exercise of each Warrant before such adjustment, and (2) the Exercise Price in
effect immediately prior to the distribution giving rise to this adjustment by (y) the new Exercise
Price determined in accordance with the immediately preceding sentence. In the event that such
distribution is not so made, the Exercise Price and the number of Warrant Shares issuable upon
exercise of each Warrant then in effect shall be readjusted, effective as of the date when the
Board of Directors determines not to distribute such shares, evidences of indebtedness, assets,
rights, cash or warrants, as the case may be, to the Exercise Price that would then be in effect and the number of Warrant Shares that would then
be issuable upon exercise of the Warrant if such record date had not been fixed.
(d)
Certain Repurchases of Common Stock
. In case the Company effects a Pro Rata
Repurchase of Common Stock, then the Exercise Price shall be adjusted to the price determined by
multiplying the Exercise Price in effect immediately prior to the effective date of such Pro Rata
Repurchase by a fraction of which the numerator shall be (i) the product of (x) the number of
shares of Common Stock outstanding immediately before such Pro Rata Repurchase and (y) the Closing
Price of a share of Common Stock on the trading day immediately preceding the first public
announcement by the Company or any of its Subsidiaries of the intent to effect such Pro Rata
Repurchase, minus (ii) the aggregate purchase price of the Pro Rata Repurchase, and of which the
denominator shall be the product of (i) the number of shares of Common Stock outstanding
immediately prior to such Pro Rata Repurchase minus the number of shares of Common Stock so
repurchased and (ii) the Closing Price per share of Common Stock on the trading day immediately
preceding the first public announcement by the Company or any of its Subsidiaries of the intent to
effect such Pro Rata Repurchase. In such event, the number of shares of Common Stock issuable upon
the exercise of each Warrant shall be adjusted to the number obtained by dividing (x) the product
of (1) the number of Warrant Shares issuable upon the exercise of each Warrant before such
adjustment, and (2) the Exercise Price in effect immediately prior to the Pro Rata Repurchase
giving rise to this adjustment by (y) the new Exercise Price determined in accordance with the
immediately preceding sentence.
10
(e)
Reorganization
. If the Company consolidates or merges with or into, or transfers
or leases all or substantially all its assets to, any person, upon consummation of such transaction
the Warrants shall automatically become exercisable for the kind and amount of securities, cash or
other assets which the Warrant holder would have owned immediately after the consolidation, merger,
transfer or lease if the Warrant holder had exercised the Warrant immediately before the effective
date of the transaction. Concurrently with the consummation of such transaction, the corporation
formed by or surviving any such consolidation or merger if other than the Company, or the person to
which such sale or conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as nearly equivalent as
may be practical to the adjustments provided for in this Section 11(e). The successor Company
shall mail to Warrant holders a notice describing the supplemental Warrant Agreement.
(f)
Rounding of Calculations; Minimum Adjustments
. All calculations under this
Section 11 shall be made to the nearest one-hundredth (1/100th) of a cent or to the nearest
one-ten-thousandth (1/10,000th) of a share, as the case may be.
(g)
Proceedings Prior to Any Action Requiring Adjustment
. As a condition precedent to
the taking of any action which would require an adjustment pursuant to this Section 11, the Company
shall take any action which may be necessary, including obtaining regulatory, New York Stock
Exchange or stockholder approvals or exemptions, in order that the Company may thereafter validly
and legally issue as fully paid and nonassessable all shares of Common Stock that each Warrant
holder is entitled to receive upon exercise of the Warrant pursuant to this Section 11.
(h)
Adjustment Rules
. Any adjustments pursuant to this Section 11 shall be made
successively whenever an event referred to herein shall occur. If an adjustment in Exercise Price
made hereunder would reduce the Exercise Price to an amount below par value of the Common Stock,
then such adjustment in Exercise Price made hereunder shall reduce the Exercise Price to the par
value of the Common Stock.
(i) Notwithstanding anything to the contrary herein, under no circumstances shall the Company
cause any adjustment should such adjustment cause the number of common shares issued and
outstanding upon completion of the adjustment to be in excess of the number of authorized shares of
the Company.
SECTION 12.
Fractional Interests
. The Company shall not be required to issue fractional Warrant Shares on the exercise of
Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the
same holder, the number of full Warrant Shares which shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of Warrant Shares purchasable on exercise of
the Warrants so presented. If any fraction of a Warrant Share would, except for the provisions of
this Section 12, be issuable on the exercise of any Warrants (or specified portion thereof), the
Company may either (i) deliver an amount in cash equal to the same fraction of the Closing Price of
the Common Stock on the Exercise Date or (ii) round the number of Warrant Shares to be issued upon
exercise up to the nearest whole number of Warrant Shares.
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SECTION 13.
Notices to Warrant Holders
. Upon any adjustment of the Exercise Price pursuant to Section 11, the Company shall
promptly thereafter (i) cause to be filed with the Warrant Agent a certificate executed by the
chief financial officer or the principal financial or accounting officer of the Company setting
forth the Exercise Price after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculations are based and setting forth the number of
Warrant Shares (or portion thereof) issuable after such adjustment in the Exercise Price, upon
exercise of a Warrant and payment of the adjusted Exercise Price, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and (ii) cause to be given
to each of the registered holders of the Warrant Certificates at his address appearing on the
Warrant register written notice of such adjustments by first-class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the notice required to
be mailed under the other provisions of this Section 13.
In case:
(a) the Company shall authorize the issuance to all holders of shares of Common Stock of
rights, options or warrants to subscribe for or purchase shares of Common Stock or of any other
subscription rights or warrants; or
(b) the Company shall authorize the distribution to all holders of shares of Common Stock
evidences of its indebtedness or assets (other than dividends payable in shares of Common Stock or
distributions referred to in subsection (a) of Section 11 hereof); or
(c) of any consolidation or merger to which the Company is a party and for which approval of
any shareholders of the Company is required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or of any reclassification or change of Common
Stock issuable upon exercise of the Warrants (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a subdivision or
combination), or a tender offer or exchange offer for shares of Common Stock; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or
(e) the Company proposes to take any action (other than actions of the character described in
Section 11(a)) which would require an adjustment of the Exercise Price pursuant to Section 11,
then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each
of the registered holders of the Warrant Certificates at his address appearing on the Warrant
register, at least 20 days (or 10 days in any case specified in clauses (a) or (b) above) prior to
the applicable record date hereinafter specified, or promptly in the case of events for which there
is no record date, by first-class mail, postage prepaid, a written notice stating (i) the date as
of which the holders of record of shares of Common Stock to be entitled to receive any such rights,
options, warrants or distribution are to be determined, or (ii) the initial expiration date set
forth in any tender offer or exchange offer for shares of Common Stock, or (iii) the date on which
any such consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up is
expected to become effective or consummated, and the date as of which it is expected that holders
of record of shares of Common Stock shall be entitled to
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exchange such shares for securities or
other property, if any, deliverable upon such reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding up. The failure to give the notice required by this
Section 13 or any defect therein shall not affect the legality or validity of any distribution,
right, option, warrant, consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up, or the vote upon any action.
Nothing contained in this Agreement or in any of the Warrant Certificates shall be construed
as conferring upon the holders thereof the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of directors of the Company
or any other matter, or any rights whatsoever as shareholders of the Company.
SECTION 14.
Merger, Consolidation or Change of Name of Warrant Agent
. Any corporation into which the Warrant Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party, or any corporation succeeding to the business of the Warrant Agent, shall
be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any
of the Warrant Certificates shall have been countersigned but not delivered, any such successor to
the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that
time any of the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor
Warrant Agent or in the name of the successor to the Warrant Agent; and in all such cases such Warrant Certificates shall have the full force and effect provided
in the Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at such time any of the
Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name
has been changed may adopt the countersignature under its prior name, and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign
such Warrant Certificates either in its prior name or in its changed name, and in all such cases
such Warrant Certificates shall have the full force and effect provided in the Warrant Certificates
and in this Agreement.
SECTION 15.
Warrant Agent
. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall be taken as
statements of the Company and the Warrant Agent assumes no responsibility for the correctness of
any of the same except such as describe the Warrant Agent or action taken or to be taken by it.
The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the Company to comply with
any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with
by the Company.
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(c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be
counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion or the advice of such
counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant Certificate for any action taken in reliance on any Warrant Certificate,
certificate of shares, notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed, sent or presented by
the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services
rendered by the Warrant Agent in the execution of this Agreement, to reimburse the Warrant Agent
for all expenses, taxes and governmental charges and other charges of any kind and nature incurred
by the Warrant Agent in the execution of this Agreement and to indemnify the Warrant Agent and save
it harmless against any and all liabilities, including judgments, costs and counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result
of its negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any action, suit or legal
proceeding or to take any other action likely to involve expense unless the Company or one or more
registered holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security
and indemnity for any costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as it may consider proper, whether with or
without any such security or indemnity. All rights of action under this Agreement or under any of
the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable benefit of the registered
holders of the Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee of it, may buy, sell
or deal in any of the Warrants or other securities of the Company or become pecuniarily interested
in any transaction in which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties
shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty or responsibility to any holder
of any Warrant Certificate to make or cause to be made any
14
adjustment of the Exercise Price or
number of the Warrant Shares or other securities or property deliverable as provided in this
Agreement, or to determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Warrant Shares or of any securities or property
which may at any time be issued or delivered upon the exercise of any Warrant or with respect to
whether any such Warrant Shares or other securities will when issued be validly issued and fully
paid and nonassessable, and makes no representation with respect thereto.
SECTION 16.
Change of Warrant Agent
. If the Warrant Agent shall become incapable of acting as Warrant Agent, the Company shall
appoint a successor to such Warrant Agent. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such incapacity by the Warrant
Agent or by the registered holder of a Warrant Certificate, then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a
successor to the Warrant Agent. Pending appointment of a successor to such Warrant Agent, either
by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the
Company. The holders of a majority of the unexercised Warrants shall be entitled at any time to remove the Warrant Agent and appoint a successor to such
Warrant Agent. Such successor to the Warrant Agent need not be approved by the Company or the
former Warrant Agent. After appointment the successor to the Warrant Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally named as Warrant
Agent without further act or deed; but the former Warrant Agent shall deliver and transfer to the
successor to the Warrant Agent any property at the time held by it hereunder and execute and
deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give
any notice provided for in this Section 16, however, or any defect therein, shall not affect the
legality or validity of the appointment of a successor to the Warrant Agent.
SECTION 17.
Notices to Company and Warrant Agent
. Any notice or demand authorized by this Agreement to be given or made by the Warrant Agent
or by the registered holder of any Warrant Certificate to or on the Company shall be sufficiently
given or made when and if deposited in the mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Company with the Warrant Agent), as
follows:
Las Vegas Sands Corp.
3355 Las Vegas Blvd. South
Las Vegas, NV 89109
Attention: J. Alberto Gonzalez-Pita
In case the Company shall fail to maintain such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations may be made and
notices and demands may be served at the principal office of the Warrant Agent.
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Any notice pursuant to this Agreement to be given by the Company or by the registered
holder(s) of any Warrant Certificate to the Warrant Agent shall be sufficiently given when and if
deposited in the mail, first-class or registered, postage prepaid, addressed (until another address
is filed in writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Attention: Richard Prokosch
SECTION 18.
Supplements and Amendments
. The Company and the Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may
deem necessary or desirable and which shall not in any way materially adversely affect the
interests of the holders of Warrant Certificates. All other modifications or amendments shall
require the written consent of the registered holders of a majority of the then outstanding
Warrants;
provided, however,
that no modification or amendment shall be made to any Warrant without
the consent of the holder of such Warrant if such modification or amendment would increase the
Exercise Price, reduce the number of Warrant Shares for which such Warrant is exercisable, or limit
the exercisability of such Warrant or otherwise disproportionately affect the rights of such holder
with respect to such Warrant.
SECTION 19.
Successors
. All the covenants and provisions of this Agreement by or for the benefit of the Company or
the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 20.
Termination
. This Agreement shall terminate at 5:00 p.m., New York City time on November 16, 2013.
Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants
have been exercised. The provisions of Section 15 shall survive such termination.
SECTION 21.
Governing Law
. The terms and conditions of this Agreement (including any claim or controversy arising out
of or relating to this Agreement) shall be governed by the law of the State of New York without
regard to conflict of law principles that would result in the application of any law other than the
law of the State of New York.
SECTION 22.
Benefits of This Agreement
. Nothing in this Agreement shall be construed to give to any person or corporation other
than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the
Warrant Certificates.
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SECTION 23.
Counterparts
. This Agreement may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of
the day and year first above written.
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LAS VEGAS SANDS CORP.
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By
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/s/
William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief
Operating Officer and Secretary
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Attest:
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/s/ Scott D. Henry
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Name:
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Scott D. Henry
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Title:
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Senior Vice President Finance
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U.S. BANK NATIONAL ASSOCIATION
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By
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/s/
Richard Prokosch
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Title:
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Vice President
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Attest:
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/s/
Raymond Haverstock
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Title:
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Vice President
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ANNEX I
Board of Directors
means the board of directors of the Company, including any duly
authorized committee thereof.
Business Day
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
Capital Stock
means (A) with respect to any Person that is a corporation or company, any and
all shares, interests, participations or other equivalents (however designated) of capital or
capital stock of such Person and (B) with respect to any Person that is not a corporation or
company, any and all partnership or other equity interests of such Person.
Closing Price
means, with respect to the Common Stock, on any given day, the last sale
price, regular way, or, in case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, of the shares of the Common Stock on the New York Stock Exchange
on such day. If the Common Stock is not traded on the New York Stock Exchange on any date of
determination, the Closing Price of the Common Stock on such date of determination means the
closing sale price as reported in the composite transactions for the principal U.S. national or
regional securities exchange on which the Common Stock is so listed or quoted, or, if no closing
sale price is reported, the last reported sale price on the principal U.S. national or regional
securities exchange on which the Common Stock is so listed or quoted, or if the Common Stock is not
so listed or quoted on a U.S. national or regional securities exchange, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by Pink Sheets LLC or similar
organization, or, if that bid price is not available, the Closing Price of the Common Stock on that
date shall mean the Fair Market Value per share as determined by the Board of Directors in reliance
on an opinion of a nationally recognized independent investment banking firm retained by the
Corporation for this purpose and certified in a resolution sent to the Warrant Agent. For the
purposes of determining the Closing Price of the Common Stock on the trading day preceding, on or
following the occurrence of an event, (i) that trading day shall be deemed to commence immediately
after the regular scheduled closing time of trading on the New York Stock Exchange or, if trading
is closed at an earlier time, such earlier time and (ii) that trading day shall end at the next
regular scheduled closing time, or if trading is closed at an earlier time, such earlier time (for
the avoidance of doubt, and as an example, if the Closing Price is to be determined as of the last
trading day preceding a specified event and the closing time of trading on a particular day is 4:00
p.m. and the specified event occurs at 5:00 p.m. on that day, the Closing Price would be determined
by reference to such 4:00 p.m. closing price).
Exchange Act
means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
Fair Market Value
means, with respect to any security or other property, the fair market
value of such security or other property as determined by the Board of Directors, acting in good
faith.
Note Conversion and Securities Purchase Agreement
means the Conversion and Securities
Purchase Agreement, dated November 14, 2008, between the Company and the person listed on Schedule
A thereto.
Person
has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act.
Pro Rata Repurchases
means any purchase of shares of Common Stock by the Company or any
Subsidiary thereof pursuant to (A) any tender offer or exchange offer subject to Section 13(e) or
14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (B) any other offer available
to substantially all holders of Common Stock, in the case of both (A) or (B), whether for cash,
shares of Capital Stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other Person or any other property (including, without limitation, shares of
Capital Stock, other securities or evidences of indebtedness of a subsidiary), or any combination
thereof, effected while this Warrant is outstanding. The
Effective Date
of a Pro Rata Repurchase
shall mean the date of acceptance of shares for purchase or exchange by the Company under any
tender or exchange offer which is a Pro Rata Repurchase or the date of purchase with respect to any
Pro Rata Purchase that is not a tender or exchange offer.
Related Party
means (1) Sheldon G. Adelson, (2) any spouse and any child, stepchild, sibling
or descendant of Sheldon G. Adelson or Dr. Miriam Adelson, (3) any estate of Sheldon G. Adelson or
any person under clause (2), (4) any person who receives a beneficial interest in the Company from
any estate under clause (3) to the extent of such interest, (5) any executor, personal
administrator or trustee who holds such beneficial interest in the Company for the benefit of, or
as fiduciary for, any person under clauses (2), (3) or (4) to the extent of such interest, (6) any
corporation, partnership, limited liability company, trust or similar entity owned or controlled by
Sheldon G. Adelson or any person referred to in clause (2), (3), (4) or (5) or for the benefit of
any person referred to in clause (2), and (7) the spouse or issue of one or more of the individuals
described in clause (2).
Securities Act
means the Securities Act of 1933, as amended.
Subsidiary
means, with respect to any Person, (a) any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof and (b) any partnership or limited liability company of which more
than 50% of such entities capital accounts, distribution rights, partnership interests or
membership interests are owned or controlled directly or indirectly by such Person or one of more
other Subsidiaries of that Person or a combination thereof.
EXHIBIT A
[Form of Warrant Certificate]
EXERCISABLE ON OR BEFORE November 16, 2013
Warrant Certificate
[COMPANY]
This Warrant Certificate certifies that [NAME OF HOLDER], or registered assigns, is the
registered holder of Warrants expiring November 16, 2013 (the
Warrants
) to purchase Common Stock,
$0.001 par value (the
Common Stock
), of Las Vegas Sands Corp., a Nevada corporation (the
Company). Each Warrant entitles the holder upon exercise to receive from the Company on or
before 5:00 p.m. New York City Time on November 16, 2013, [___] fully paid and nonassessable shares
of Common Stock (
Warrant Shares
) at the initial exercise price (the
Exercise Price
) of
$[_______] payable as set forth in the Warrant Agreement, dated November [___________], 2008, between the
Company and the [___________] (the
Warrant Agent
). The Exercise Price and number of Warrant
Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time on November 16, 2013, and to
the extent not exercised by such time such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on
the reverse hereof and such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such
term is used in the Warrant Agreement.
This Warrant Certificate (including any claim or controversy arising out of or relating to
this Warrant Certificate) shall be governed by the law of the State of New York without regard to
conflict of law principles that would result in the application of any law other than the law of
the State of New York.
IN WITNESS WHEREOF,
________________________ has caused this Warrant Certificate to be
signed by its President and by its Secretary[, each by a facsimile of his signature,] and has
caused [a facsimile of] its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
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LAS VEGAS SANDS CORP.
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By
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President
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By
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Secretary
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Countersigned
U.S. BANK NATIONAL ASSOCIATION
as Warrant Agent
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of
Warrants expiring November 16, 2013 entitling the holder on exercise to receive shares of Common
Stock, $0.001 par value, of the Company (the
Common Stock
), and are issued or to be issued
pursuant to a Warrant Agreement dated as of November [___], 2008 (the
Warrant Agreement
), duly
executed and delivered by the Company to U.S. Bank National Association, a national banking
association organized under the laws of the United States, as warrant agent (the
Warrant Agent
),
which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument
and is hereby referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words
holders or holder meaning the registered holders or registered holder) of the Warrants. A copy
of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company.
Warrants may be exercised at any time on or before November 16, 2013. The holder of Warrants
evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in cash, or any other method of payment provided for in the
Warrant Agreement, at the office of the Warrant Agent. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant
Certificate evidencing the number of Warrants not exercised. No adjustment shall be made for any
dividends on any Common Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price
set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise
Price is adjusted, the Warrant Agreement provides that the number of shares of Common Stock
issuable upon the exercise of each Warrant shall be adjusted. No fractions of a share of Common
Stock will be issued upon the exercise of any Warrant, but the Company will pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the Warrant Agent by the registered
holder thereof in person or by legal representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but
without payment of any service charge, for another Warrant Certificate or Warrant Certificates of
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office
of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing
in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for
this Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate
entitles any holder hereof to any rights of a stockholder of the Company.
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
TO: [COMPANY]
1. The undersigned hereby irrevocably elects to exercise the right, represented by the
attached Warrant Certificate, to receive Warrant Shares pursuant to the Cash Exercise Option as
specified in the fourth paragraph of Section 6 of the Warrant Agreement. This election is
exercised with respect to _____________ of the shares covered by the Warrant Certificate.
1. The undersigned hereby irrevocably elects to exercise the right, represented by the
attached Warrant Certificate, to receive Warrant Shares without the exchange of any funds pursuant
to the Preferred Exercise Option as specified in the fourth paragraph of Section 6 of the Warrant
Agreement. This election is exercised with respect to _____________ of the shares covered by
the Warrant Certificate.
1. The undersigned hereby irrevocably elects to exercise the right, represented by the
attached Warrant Certificate, to receive Warrant Shares on a net basis without the exchange of any
funds pursuant to the Net Share Exercise Option as specified in the fourth paragraph of Section 6
of the Warrant Agreement. This election is exercised with respect to _____________ of the
shares covered by the Warrant Certificate (prior to taking into account any withholding of shares).
[Strike paragraphs above that do not apply]
2. Please issue a certificate or certificates representing said shares of stock in the name of
the undersigned or in such other name as is specified below:
(Name)
(Address)
[3. [
If receiving unregistered shares
] The undersigned represents that the aforesaid shares of
stock are being acquired for the account of the undersigned for investment and not with a view to,
or for resale in connection with, the distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares in violation of the Securities Act.]
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Name of Warrantholder:
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By:
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Name:
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Title:
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Exhibit
10.2
EXECUTION COPY
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
LAS VEGAS SANDS CORP.
and the STOCKHOLDERS named therein
TABLE OF CONTENTS
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Page
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1.
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Definitions
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4
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2.
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General; Securities Subject to this Agreement
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10
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(a)
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Grant of Rights
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10
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(b)
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Registrable Securities
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10
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(c)
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Holders of Registrable Securities
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11
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(d)
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Transfer of Registration Rights
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11
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3.
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Demand Registration
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12
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(a)
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Request for Demand Registration
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12
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(b)
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Incidental or Piggy-Back Rights with Respect to a Demand Registration
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12
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(c)
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Effective Demand Registration
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13
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(d)
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Expenses
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13
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(e)
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Underwriting Procedures
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13
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(f)
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Selection of Underwriters
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14
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(g)
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Withdrawal
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14
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4.
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Incidental or Piggy-Back Registration
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14
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(a)
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Request for Incidental Registration
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14
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(b)
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Expenses
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15
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5.
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Form S-3 Registration
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(a)
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Request for a Form S-3 Registration
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16
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(b)
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Form S-3 Underwriting Procedures
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(c)
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Limitations on Form S-3 Registrations
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(d)
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Expenses
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18
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6.
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Hedging Transactions
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18
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7.
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Holdback Agreements
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18
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(a)
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Restrictions on Public Sale by Designated Holders
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18
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(b)
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Restrictions on Public Sale by the Company
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19
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8.
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Registration Procedures
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(a)
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Obligations of the Company
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19
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(b)
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Seller Information
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22
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(c)
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Notice to Discontinue
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23
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(d)
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Registration Expenses
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23
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9.
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Indemnification; Contribution
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24
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(a)
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Indemnification by the Company
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24
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(b)
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Indemnification by Designated Holders
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24
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(c)
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Conduct of Indemnification Proceedings
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25
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(d)
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Contribution
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26
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Registration Rights Agreement
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Page 2 of 38
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Page
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10.
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Rule 144
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27
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11.
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Miscellaneous
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27
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(a)
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Registration Defaults
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27
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(b)
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Stock Splits, etc.
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28
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(c)
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No Inconsistent Agreements
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28
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(d)
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Remedies
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28
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(e)
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Amendments and Waivers
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28
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(f)
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Notices
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28
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(g)
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Permitted Assignees; Third Party Beneficiaries
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29
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(h)
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Counterparts
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29
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(i)
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GOVERNING LAW
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29
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(j)
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Severability
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29
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(k)
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Rules of Construction
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29
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(l)
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Entire Agreement
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30
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(m)
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Further Assurances
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30
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(n)
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Other Agreements
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30
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Page 3 of 38
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of November 14, 2008, by
and among Las Vegas Sands Corp., a Nevada corporation (the
Company
), Dr. Miriam Adelson
(the
Adelson Purchaser
), the other Adelson Holders (as defined below) and the Other
Holders (as defined below) that are party to this Agreement from time to time.
WHEREAS, the Company consummated an Initial Public Offering (as hereinafter defined) on
December 20, 2004;
WHEREAS, on September 30, 2008, the Company issued and sold to the Adelson Purchaser $475.0
million aggregate principal amount of its 6
1
/
2
% Convertible Senior Notes due 2013 (the
Notes
) and in connection therewith, the Company, and the parties thereto, entered into
the Amended and Restated Registration Rights Agreement, dated as of September 30, 2008;
WHEREAS, under the Note Conversion and Securities Purchase Agreement, dated November 10, 2008
(the
Note Conversion and Securities Purchase Agreement
), by and between the Adelson
Purchaser and the Company, (x) the Company has agreed to issue and sell, and the Adelson Purchaser
has agreed to purchase, 5,250,000 shares of the Companys Series A cumulative perpetual preferred
stock, par value $0.001 per share, having a liquidation preference of $100.00 per share (the
Preferred Stock
), and warrants (the
Warrants,
and together with the Preferred
Stock, the
Securities
) to purchase up to an aggregate of 87,500,175 shares of the
Companys common stock, par value $0.001 per share (the
Common Stock
), and (y) the
Adelson Purchaser has agreed to convert $475,000,000 aggregate principal amount of the Notes;
WHEREAS, in order to induce the Adelson Purchaser to purchase the Securities pursuant to the
Note Conversion and Securities Purchase Agreement and to provide for the grant of registration
rights with respect to the Registrable Securities (as hereinafter defined), the Company is willing
to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context requires a different meaning,
the following terms have the meanings indicated:
Adelson Holders
means collectively Sheldon G. Adelson, the Sheldon G. Adelson 2002
Remainder Trust, the Adelson Purchaser, the Sheldon G. Adelson 2005 Family Trust u/d/t dated April
25, 2005, the Dr. Miriam and Sheldon G. Adelson Charitable Trust u/d/t dated December 12, 1994, the
ESBT Y TRUST u/d/t dated October 1, 2002, the ESBT S TRUST u/d/t dated October 1, 2002, the QSST A
TRUST u/d/t dated October 1, 2002, the QSST M TRUST u/d/t dated October 1, 2002, the Sheldon G.
Adelson 2004 Remainder Trust u/d/t dated May 31, 2004, the Sheldon G. Adelson 2007 Two Year LVS
Annuity Trust u/d/t
Page 4 of 38
dated May 1, 2007, the Sheldon G. Adelson 2007 Three Year LVS Annuity Trust u/d/t dated May 1,
2007, the Sheldon G. Adelson July 2007 Two Year LVS Annuity Trust u/d/t dated July 30, 2007, the
Sheldon G. Adelson July 2007 Three Year LVS Annuity Trust u/d/t dated July 30, 2007, the Sheldon G.
Adelson April 2008 Two Year LVS Annuity Trust u/d/t dated April 1, 2008, the Sheldon G. Adelson
April 2008 Three Year LVS Annuity Trust u/d/t dated April 1, 2008, the Sheldon G. Adelson July 2008
Two Year LVS Annuity Trust u/d/t dated July 28, 2008, the Sheldon G. Adelson July 2008 Three Year
LVS Annuity Trust u/d/t dated July 28, 2008 and the assignees of each of the foregoing as permitted
by Section 2(d) of this Agreement.
Affiliate
means, with respect to a Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as used with respect to a Person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.
Agreement
means this Registration Rights Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
Approved Underwriter
has the meaning set forth in Section 3(f) of this Agreement.
Board of Directors
means the Board of Directors of the Company.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks in the State of New York or Nevada are authorized or required by law or executive
order to close.
Certificate of Designations
means the Certificate of Designations setting forth the
rights, preferences, privileges and other terms of the Preferred Stock as duly adopted by the
Company and filed with the Secretary of State of the State of Nevada.
Closing Price
means, with respect to the Registrable Securities, as of the date of
determination, (a) if the Registrable Securities are listed on a national securities exchange, the
closing price per share or other applicable unit of a Registrable Security on such date published
in
The Wall Street Journal (National Edition)
or, if no such closing price on such date is
published in
The Wall Street Journal (National Edition)
, the average of the closing bid and
asked prices on such date, as officially reported on the principal national securities exchange on
which the Registrable Securities are then listed or admitted to trading; or (b) if the Registrable
Securities are not then listed or admitted to trading on any national securities exchange but are
designated as national market system securities by the NASD, the last trading price per share or
other applicable unit of a Registrable Security on such date; or (c) if there shall have been no
trading on such date or if the Registrable Securities are not designated as national market system
securities by the NASD, the average of the reported closing bid and asked prices of the Registrable
Securities on such date as shown by The
Page 5 of 38
Nasdaq Stock Market, Inc. (or its successor) and reported by any member firm of The New York
Stock Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c) is applicable, a
market price per share or other applicable unit determined in good faith by the Board of Directors.
If trading is conducted on a continuous basis on any exchange, then the closing price shall be as
set forth at 4:00 P.M. New York City time.
Commission
means the Securities and Exchange Commission or any similar agency then
having jurisdiction to enforce the Securities Act.
Common Stock
means (i) the Common Stock, par value $0.001 per share, of the Company,
(ii) any other common stock of the Company, (iii) any securities of the Company or any successor or
assign of the Company into which such stock described in clauses (i) and (ii) is reclassified or
reconstituted or into which such stock is converted or otherwise exchanged in connection with a
combination of shares, recapitalization, merger, sale of assets, consolidation or other
reorganization or otherwise or (iv) any securities received as a dividend or distribution in
respect of the securities described in clauses (i), (ii), and (iii) above.
Company
has the meaning set forth in the preamble to this Agreement.
Company Underwriter
has the meaning set forth in Section 4(a) of this Agreement.
Demand Registration
has the meaning set forth in Section 3(a) of this Agreement.
Designated Holder
means each of the Adelson Holders and Other Holders.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
Hedging Counterparty
means a broker-dealer registered under Section 15(b) of the
Exchange Act or an Affiliate thereof.
Hedging Transaction
means any transaction involving a security linked to the
Registrable Securities or any security that would be deemed to be a derivative security (as
defined in Rule 16a-1(c) under the Exchange Act) with respect to the Registrable Securities or
transaction (even if not a security) which would (were it a security) be considered such a
derivative security, or which transfers some or all of the economic risk of ownership of the
Registrable Securities, including, without limitation, any forward contract, equity swap, put or
call, put or call equivalent position, collar, non-recourse loan, sale of exchangeable security or
similar transaction. For the avoidance of doubt, the following transactions shall be deemed to be
Hedging Transactions:
(a) transactions by a Designated Holder in which a Hedging Counterparty engages in short sales
of Registrable Securities pursuant to a Prospectus and may use Registrable Securities to close out
its short position;
Page 6 of 38
(b) transactions pursuant to which a Designated Holder sells short Registrable Securities
pursuant to a Prospectus and delivers Registrable Securities to close out its short position;
(c) transactions by a Designated Holder in which the Designated Holder delivers, in a
transaction exempt from registration under the Securities Act, Registrable Securities to the
Hedging Counterparty who will then publicly resell or otherwise transfer such Registrable
Securities pursuant to a Prospectus or an exemption from registration under the Securities Act; and
(d) a loan or pledge of Registrable Securities to a Hedging Counterparty who may then become a
selling stockholder and sell the loaned shares or, in an event of default in the case of a pledge,
then sell the pledged shares, in each case, in a public transaction pursuant to a Prospectus.
Holders Counsel
has the meaning set forth in Section 8(a)(i) of this Agreement.
Incidental Registration
has the meaning set forth in Section 4(a) of this Agreement.
Indemnified Party
has the meaning set forth in Section 9(c) of this Agreement.
Indemnifying Party
has the meaning set forth in Section 9(c) of this Agreement.
Initial Public Offering
means the initial public offering of the shares of Common
Stock of the Company pursuant to an effective Registration Statement filed under the Securities
Act.
Initiating Holders
has the meaning set forth in Section 3(a) of this Agreement.
Inspector
has the meaning set forth in Section 8(a)(vii) of this Agreement.
IPO Effectiveness Date
means the date upon which the Company consummates the Initial
Public Offering.
Liability
has the meaning set forth in Section 9(a) of this Agreement.
Liquidated Damages
has the meaning set forth in Section 11(a) of this Agreement.
Lock-up Agreement
means, with respect to each Designated Holder, the lock-up
agreement, dated the IPO Effectiveness Date, entered into by such Designated Holder with the
underwriters of the Initial Public Offering.
Page 7 of 38
Majority Designated Holders
means beneficial owners of Registrable Securities
representing more than 50% of the total number of outstanding Registrable Securities (on an
as-converted basis).
Market Price
means, on any date of determination, the average of the daily Closing
Price of the Registrable Securities for the immediately preceding thirty (30) days on which the
national securities exchanges are open for trading;
provided
,
however
, that if the
Closing Price is determined pursuant to clause (d) of the definition of Closing Price, the Market
Price means such Closing Price on the date of determination.
NASD
means the National Association of Securities Dealers, Inc.
Note Conversion and Securities Purchase Agreement
has the meaning set forth in the
recitals to this Agreement.
Notes
has the meaning set forth in the recitals to this Agreement.
Other Holders
means collectively William P. Weidner, Weidner Holdings, LLC, Bradley
H. Stone, The Stone Crest Trust, Robert G. Goldstein, The Robert and Sheryl Goldstein Trust, SC
Goldstein Holdings, LLC, David Friedman, Richard Heller, Dan Raviv, Harry D. Miltenberger and
Charles D. Forman and the assignees of each of the foregoing as permitted by Section 2(d) of this
Agreement.
Permitted Assignee
means, with respect to any Person, to the extent applicable, (i)
such Persons parents, spouse, spouses issue, siblings, children (including stepchildren and
adopted children), childrens spouses, grandchildren or grandchildrens spouses thereof and issue
of the same (
Family Members
), (ii) a trust, corporation, partnership or limited liability
company, a majority of the beneficial interests of which shall be held by such Person, such
Persons Affiliates and/or such Persons Family Members, (iii) such Persons heirs, executors,
administrators, estate or a trust under such Persons will, (iv) an entity described in Section
501(c)(3) of the United States Internal Revenue Code of 1986, as amended, that is established by
such Person and (v) any Person to whom such Person transfers Registrable Securities representing at
least 1% of the outstanding Common Stock as of the date of such transfer.
Permitted Withdrawal
has the meaning set forth in Section 3(g) of this Agreement.
Person
means any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
Pledgee
has the meaning set forth in Section 2.4(d).
Preferred Stock
Registration Statement
has the meaning set forth in the
definition of Registration Default.
Page 8 of 38
Prospectus
means the prospectus related to any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance on Rule 415 (or any successor rule
or regulation) under the Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated by reference in
such prospectus.
Records
has the meaning set forth in Section 8(a)(vii) of this Agreement.
Registrable Securities
means, subject to Section 2(d)(i), (i) any and all shares of
Common Stock now or hereafter owned by the Designated Holders or issued or issuable upon conversion
of any convertible securities or exercise of any warrants or options now or hereafter held by any
of the Designated Holders, (ii) the Preferred Stock held by the Adelson Purchaser (or any Adelson
Holder or Permitted Assignee or Affiliate of the Adelson Purchaser that hereafter holds any
Preferred Stock issued and sold pursuant to the Note Conversion and Securities Purchase Agreement),
(iii) the Warrants held by the Adelson Purchaser (or any Adelson Holder or Permitted Assignee or
Affiliate of the Adelson Purchaser that hereafter holds any Warrants issued and sold pursuant to
the Note Conversion and Securities Purchase Agreement) and (iv) any shares of Common Stock issued
or issuable upon the exercise of the Warrants by the Adelson Purchaser (or any Adelson Holder or
Permitted Assignee to which the Adelson Purchaser may assign such Common Stock) pursuant to the
terms of the Warrants and the Note Conversion and Securities Purchase Agreement.
Registration Default
means (i) the failure of the Company to file any registration
statement in respect of Registrable Securities described in clauses (ii), (iii) and (iv) of the
definition thereof required to be filed pursuant to
Section 5
hereof with the Commission
within 90 days after request is made pursuant to the terms hereof (a
Preferred Stock
Registration Statement
, a
Warrant Registration Statement
and a
Warrant Share
Registration Statement
, respectively), (ii) the failure of the Company to cause any Preferred
Stock Registration Statement, Warrant Registration Statement or Warrant Share Registration
Statement to be declared effective by the Commission within 120 days after a request is made
pursuant to the terms hereof or (iii) in the event that any Preferred Stock Registration Statement,
Warrant Registration Statement or Warrant Share Registration Statement required by this Agreement
that is filed and declared effective and thereafter ceases to be effective or fails to be usable
for its intended purpose prior to the end of the period specified in
Section 8(a)(ii)
hereof, the failure of the Company to succeed such Preferred Stock Registration Statement, Warrant
Registration Statement or Warrant Share Registration Statement immediately by a post-effective
amendment to such Preferred Stock Registration Statement, Warrant Registration Statement or Warrant
Share Registration Statement or a new registration statement that cures such failure and that is
itself immediately declared effective.
Registration Expenses
has the meaning set forth in Section 8(d) of this Agreement.
Registration Statement
means a Registration Statement filed pursuant to the
Securities Act.
Page 9 of 38
S-3 Initiating Holders
has the meaning set forth in Section 5(a) of this Agreement.
S-3 Registration
has the meaning set forth in Section 5(a) of this Agreement.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Specified Holder
means (i) Daniel Raviv, (ii) any Permitted Assignee of Daniel Raviv
and (iii) any Pledgee of any Person described in clauses (i) and (ii) above that complies with
Section 2(d) of this Agreement.
Transfer Restricted Securities
means each share of Preferred Stock, each Warrant and
each share of Common Stock issuable upon exercise of the Warrants (and any security issued with
respect thereto upon any stock dividend, split or similar event) until the earliest of the date on
which such share of Preferred Stock, Warrant or share of Common Stock, or any security issued with
respect thereto upon any stock dividend, split or similar event, as the case may be: (i) has been
transferred pursuant to a Registration Statement filed pursuant to Rule 415 of the Securities Act
or another Registration Statement covering such shares of Preferred Stock, Warrants or shares of
Common Stock which has been filed with the Commission pursuant to the Securities Act, in either
case after such Registration Statement has become effective and while such Registration Statement
is effective under the Securities Act; (ii) has been transferred pursuant to Rule 144 (or any
similar provision then in force); (iii) may be sold or transferred pursuant to Rule 144 (or any
successor provision promulgated by the Commission); or (iv) ceases to be outstanding.
Trustee
has the meaning set forth in the recitals to this Agreement.
Valid Business Reason
has the meaning set forth in Section 3(a) of this Agreement.
Warrant Registration Statement
has the meaning set forth in the definition of
Registration Default.
Warrant Share Registration Statement
has the meaning set forth in the definition of
Registration Default.
2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a)
Grant of Rights
. The Company hereby grants registration rights to the Designated Holders upon
the terms and conditions set forth in this Agreement.
(b)
Registrable Securities
. For the purposes of this Agreement, Registrable Securities held by
any Designated Holder will cease to be Registrable Securities, when (i) a Registration Statement
covering such Registrable Securities has been declared effective under the Securities Act by the
Commission and such Registrable Securities have been disposed of pursuant to such effective
Registration Statement (except as provided by Section 2(d)), (ii) the entire amount of the
Registrable Securities held by any Designated
Page 10 of 38
Holder may be sold in a single sale, in the opinion of counsel reasonably satisfactory to the
Company, without any limitation as to volume pursuant to Rule 144 (or any successor rule or
regulation) under the Securities Act or (iii) they have ceased to be outstanding.
(c)
Holders of Registrable Securities
. A Person is deemed to be a holder of Registrable
Securities whenever such Person owns of record Registrable Securities, or holds an option to
purchase, or a security convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the Company receives
conflicting instructions, notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company may act upon the basis of the instructions, notice or election
received from the registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security, whether or not currently
exercisable, shall be deemed outstanding for the purposes of this Agreement.
(d)
Transfer of Registration Rights
.
(i) Each Designated Holder may transfer or pledge Registrable Securities with the associated
registration rights under this Agreement (including transfers occurring by operation of law or by
reason of intestacy) to a Permitted Assignee, Affiliate of such Permitted Assignee or pledgee
(
Pledgee
) only if (1) subject to the penultimate sentence of this Section 2(d), such
Permitted Assignee or Pledgee agrees in writing to be bound as a Designated Holder by the
provisions of this Agreement and (2) immediately following such transfer or pledge, the further
disposition of such Registrable Securities by such Permitted Assignee or Pledgee would be
restricted under the Securities Act and the entire amount of all such Registrable Securities could
not be sold in a single sale, in the opinion of counsel reasonably satisfactory to the Company,
without any limitation as to volume pursuant to Rule 144 (or any successor rule or regulation)
under the Securities Act. Upon any transfer of Registrable Securities other than as set forth in
this Section 2(d), such securities shall no longer constitute Registrable Securities, except that
any Registrable Securities that are pledged or made the subject of a Hedging Transaction, which
Registrable Securities are not ultimately disposed of by the Designated Holder pursuant to such
pledge or Hedging Transaction shall, to the extent such Registrable Securities remain restricted
securities under the Securities Act, be deemed to remain Registrable Securities notwithstanding
the release of such pledge or the completion of such Hedging Transaction.
(ii) If a Designated Holder assigns its rights under this Agreement in connection with the
transfer of less than all of its Registrable Securities, the Designated Holder shall retain its
rights under this Agreement with respect to its remaining Registrable Securities. If a Designated
Holder assigns its rights under this Agreement in connection with the transfer of all of its
Registrable Securities, such Designated Holder shall have no further rights or obligations under
this Agreement, except under Section 8 hereof in respect of offerings in which it participated.
Page 11 of 38
3. DEMAND REGISTRATION.
(a)
Request for Demand Registration
. Any Adelson Holder or Adelson Holders (each, an
Initiating Holder
) may make a written request to the Company to register, and the Company
shall register, under the Securities Act (other than pursuant to a Registration Statement on Form
S-4 or S-8 or any successor form thereto) (a
Demand Registration
) the number of
Registrable Securities stated in such request;
provided
,
however
, that the Company
shall not be obligated to effect (i) a Demand Registration if the Initiating Holders, together with
the Designated Holders (other than the Initiating Holders) which have requested to register
securities in such registration pursuant to Section 3(b), propose to sell their Registrable
Securities at an aggregate price (calculated based upon the Market Price of the Registrable
Securities on the last date on which the Company could receive requests for inclusion in such
Demand Registration under Section 3(b)) to the public of less than $20,000,000, (ii) any such
Demand Registration commencing prior to the time permitted under the Lock-up Agreement of the
Designated Holder, as such Lock-up Agreement may be amended or waived, or (iii) any such Demand
Registration within ninety (90) days after the effective date of any other Registration Statement
of the Company (other than a Registration Statement on Form S-4 or S-8 or any successor form
thereto or an automatic shelf registration on Form S-3). If the Board of Directors, in its good
faith judgment, determines that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing, acquisition, corporate
reorganization or merger or other material transaction involving the Company (a
Valid Business
Reason
), the Company may (x) postpone filing a Registration Statement relating to a Demand
Registration until such Valid Business Reason no longer exists, but in no event for more than
forty-five (45) days after the date when the Demand Registration was requested or, if later, after
the occurrence of the Valid Business Reason and (y) in case a Registration Statement has been filed
relating to a Demand Registration, the Company, upon the approval of a majority of the Board of
Directors, may cause such Registration Statement to be withdrawn and its effectiveness terminated
or may postpone amending or supplementing such Registration Statement (in which case, if the Valid
Business Reason no longer exists or if more than forty-five (45) days have passed since such
withdrawal or postponement, the Initiating Holders may request a new Demand Registration). The
Company shall give written notice of its determination to postpone or withdraw a Registration
Statement and of the fact that the Valid Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence thereof. Notwithstanding anything to
the contrary contained herein, the Company may not postpone or withdraw a filing under this Section
3(a) more than once in any six (6) month period. Each request for a Demand Registration by the
Initiating Holders shall state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof.
(b)
Incidental or Piggy-Back Rights with Respect to a Demand Registration
. Each of the
Designated Holders (other than Initiating Holders which have requested a registration under Section
3(a)) may offer its Registrable Securities under any Demand Registration pursuant to this Section
3. Within five (5) days after the receipt of a request for a Demand Registration from an
Initiating Holder, the Company shall (i) give written notice thereof to all of the Designated
Holders (other than Initiating Holders which
Page 12 of 38
have requested a registration under Section 3(a)) and (ii) subject to Section 3(e), include in
such registration all of the Registrable Securities held by such Designated Holders from whom the
Company has received a written request for inclusion therein within ten (10) days of the date on
which the Company sent the written notice referred to in clause (i) above. Each such request by
such Designated Holder shall specify the number of Registrable Securities proposed to be
registered. The failure of any Designated Holder to respond within such 10-day period referred to
in clause (ii) above shall be deemed to be a waiver of such Designated Holders rights under this
Section 3(b) with respect to such Demand Registration. Any Designated Holder may waive its rights
under this Section 3(b) prior to the expiration of such 10-day period by giving written notice to
the Company.
(c)
Effective Demand Registration
. The Company shall use its commercially reasonable efforts to
cause any such Demand Registration to become effective not later than the later of (i) ninety (90)
days after it receives a request under Section 3(a) hereof and (ii) 90 days after the effective
date of any other Registration Statement of the Company (other than a Registration Statement on
Form S-4 or S-8 or any successor form thereto or an automatic shelf registration on Form S-3)
that had been filed but not yet declared effective at the time such Demand Registration was made,
in each case, subject to obtaining all required approvals from all applicable gaming authorities,
and to remain continuously effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold or (ii) 120 days.
(d)
Expenses
. Except as provided in Section 8(d), the Company shall pay all Registration Expenses
in connection with a Demand Registration, whether or not such Demand Registration becomes
effective.
(e)
Underwriting Procedures
. If the Initiating Holders so elect, the Company shall use its
commercially reasonable efforts to cause such Demand Registration to be in the form of a firm
commitment underwritten offering and the managing underwriter or underwriters selected for such
offering shall be the Approved Underwriter selected in accordance with Section 3(f). In connection
with any Demand Registration under this Section 3 involving an underwritten offering, none of the
Registrable Securities held by any Designated Holder making a request for inclusion of such
Registrable Securities pursuant to Section 3(b) hereof shall be included in such underwritten
offering unless such Designated Holder accepts the terms of the offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in such quantity as set
forth below. If the Approved Underwriter advises the Company that the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently large to have a
material adverse effect on the success of such offering, then the Company shall include in such
registration, to the extent of the amount that the Approved Underwriter believes may be sold
without causing such material adverse effect,
first
, such number of Registrable Securities
of the Designated Holders participating in the offering, which Registrable Securities shall be
allocated pro rata among such Designated Holders participating in the offering (on an as converted
basis), based on the number of Registrable Securities held by each such Designated Holder,
second
, any other securities of the Company requested by holders thereof to be included in
such registration, which such securities shall be allocated pro rata among such
Page 13 of 38
stockholders, based on the number of the Companys securities held by each such stockholder,
and
third
, securities offered by the Company for its own account.
(f)
Selection of Underwriters
. If any Demand Registration or S-3 Registration, as the case may
be, of Registrable Securities is in the form of an underwritten offering, the Company shall select
and obtain one or more investment banking firms of national reputation to act as the managing
underwriter or underwriters of the offering;
provided
,
however
, that such firm
shall, in any case, also be approved by the Initiating Holders or S-3 Initiating Holders, as the
case may be, such approval not to be unreasonably delayed or withheld. Notwithstanding the
foregoing, if any S-3 Registration of Registrable Securities is in the form of a Hedging
Transaction, the S-3 Initiating Holders shall select and obtain an investment banking firm of
national reputation to act as the managing underwriter (or the equivalent position) of the Hedging
Transaction;
provided
,
however
, that such firm shall, in any case, also be approved
by the Company, such approval not to be unreasonably delayed or withheld. An investment banking
firm or firms selected pursuant to this Section 3(f) shall be referred to as the
Approved
Underwriter
in this Agreement.
(g)
Withdrawal
. An Initiating Holder shall be entitled to withdraw or revoke a request for a
Demand Registration without the prior written consent of the Company if (i) as a result of facts or
circumstances arising after the date on which such request was made relating to the Company or to
market conditions, such Initiating Holder reasonably determines that participation in such
registration would have a material adverse effect on such Initiating Holder or (ii) if the Closing
Price declines by more than ten percent (10%) from the date the Initiating Holder or Holders
requested such Demand Registration (a
Permitted Withdrawal
). An Initiating Holder shall
also be entitled to withdraw or revoke a request for a Demand Registration, notwithstanding that
such withdrawal or revocation does not constitute a Permitted Withdrawal; provided, that, in such
case, (i) the Initiating Holder receives the prior written consent of the Company to such
withdrawal or (ii) the Initiating Holder pays all fees and expenses incurred by the Company in
connection with such withdrawn registration. Any withdrawal of or revocation of a request for any
Demand Registration by an Initiating Holder under this Section 3(g) (including the following
sentence) shall constitute and effect an automatic withdrawal by all other Initiating Holders and
by any Designated Holder participating in such Demand Registration pursuant to the provisions of
Section 3(b). In addition, immediately upon determination of the price at which such Registrable
Securities are to be sold, if such price is below the price which any Designated Holder
participating in the Demand Registration finds acceptable, such Designated Holder shall then have
the right, by written notice to the Company, to withdraw its Registrable Securities from being
included in such Registration Statement.
4. INCIDENTAL OR PIGGY-BACK REGISTRATION.
(a)
Request for Incidental Registration
. If the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own account (other than
a Registration Statement on Form S-4 or S-8 or any successor form thereto) or for the account of
any stockholder of the Company other than Designated Holders pursuant to Sections 3 and 5 hereof,
then the Company shall give
Page 14 of 38
written notice of such proposed filing to each of the Designated Holders at least twenty (20)
days before the anticipated filing date, which notice shall describe the proposed registration and
distribution and offer such Designated Holders the opportunity to register the number of
Registrable Securities that each such Designated Holder may request (an
Incidental
Registration
). The Company shall use its commercially reasonable efforts (within twenty (20)
days of the notice provided for in the preceding sentence) to cause the managing underwriter or
underwriters in the case of a proposed underwritten offering (the
Company Underwriter
) to
permit each of the Designated Holders who has requested in writing to participate in the Incidental
Registration pursuant to this Section 4(a) to include its Registrable Securities in such offering
on the same terms and conditions as the securities of the Company or the account of such other
stockholder, as the case may be, included therein. Prior to the effective date of the Registration
Statement with respect to which such Incidental Registration has been requested, immediately upon
determination of the price at which such Registrable Securities are to be sold, if such price is
below the price which any Designated Holder who requested to participate in the Incidental
Registration finds acceptable, such Designated Holder shall then have the right, by written notice
to the Company, to withdraw its request to have its Registrable Securities included in such
Registration Statement. Any withdrawal of the Registration Statement by the Company for any
reason shall constitute and effect an automatic withdrawal of any Incidental Registration related
thereto. In connection with any Incidental Registration under this Section 4(a) involving an
underwritten offering, the Company shall not be required to include any Registrable Securities in
such underwritten offering unless the Designated Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, such other stockholders, if any, and the
Company Underwriter, and then only in such quantity as set forth below. If the Company Underwriter
determines that the registration of all or part of the securities that have been requested to be
included would materially adversely affect the success of such offering, then the Company shall be
required to include in such Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such material adverse effect,
first
, all
of the securities to be offered for the account of the Company, in the case of a Company initiated
Incidental Registration, or the stockholders who have requested such Incidental Registration, in
the case of a stockholder initiated Incidental Registration,
second
, such number of
Registrable Securities of the Designated Holders requested to be included in such offering, which
Registrable Securities shall be allocated pro rata among such Designated Holders participating in
the offering (on an as converted basis), based on the number of Registrable Securities held by each
such Designated Holder, and
third
, any other securities of the Company requested by the
Company or stockholders to be included in such offering. The Majority Designated Holders may waive
any right to participate in an Incidental Registration under this Section 4(a) in respect of any
registration on behalf of all holders of Registrable Securities.
(b)
Expenses
. Except as provided in Section 8(d), the Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this Section 4, whether or not
such Incidental Registration becomes effective.
Page 15 of 38
5. FORM S-3 REGISTRATION.
(a)
Request for a
Form S-3
Registration
. Upon the Company becoming eligible for use of Form S-3
(or any successor form thereto) under the Securities Act in connection with a public offering of
its securities, in the event that the Company shall receive from (x) any Adelson Holder or Adelson
Holders or (y) any Specified Holder or Specified Holders (collectively, the
S-3 Initiating
Holders
) a written request that the Company register under the Securities Act on Form S-3 (or
any successor form then in effect) (an
S-3 Registration
) all or a portion of the
Registrable Securities owned by such S-3 Initiating Holders, the Company shall give written notice
of such request to all of the other Designated Holders (other than S-3 Initiating Holders which
have requested an S-3 Registration under this Section 5(a)) at least twenty (20) days before the
anticipated filing date of such Form S-3, which notice shall describe the proposed registration and
offer such other Designated Holders the opportunity to register the number of Registrable
Securities that each such Designated Holder may request in writing to the Company, given within ten
(10) days of the date on which the Company sent the written notice of such registration. Each
request for an S-3 Registration by the S-3 Initiating Holders shall state the amount of the
Registrable Securities proposed to be sold and the intended method of disposition thereof; provided
that no S-3 Initiating Holder that is a Specified Holder may request that the S-3 Registration be a
firm commitment underwritten offering. With respect to each S-3 Registration, the Company shall,
subject to Section 5(b), (i) include in such offering the Registrable Securities of the S-3
Initiating Holders and the Designated Holders (who have requested in writing to participate in such
registration on the same terms and conditions as the Registrable Securities of the S-3 Initiating
Holders included therein) and (ii) use its commercially reasonable efforts to cause such
registration pursuant to this Section 5(a) to become and remain effective as soon as practicable
but in no event earlier than 90 days after the effective date of any other Registration Statement
of the Company (other than a Registration Statement on Form S-4 or S-8 or any successor form
thereto or an automatic shelf registration on Form S-3) that had been filed with the Commission
but not yet declared effective at the time such registration was requested, subject to obtaining
all required approvals from all applicable gaming authorities. Notwithstanding the foregoing,
immediately upon determination of the price at which such Registrable Securities are to be sold in
a S-3 Registration that is a firm commitment underwritten offering, if such price is below the
price which any Designated Holder participating in the S-3 Registration finds acceptable, such
Designated Holder shall then have the right, by written notice to the Company, to withdraw its
Registrable Securities from being included in such offering; provided, that such a withdrawal by
any one of the S-3 Initiating Holders shall constitute and effect an automatic withdrawal by all
other S-3 Initiating Holders and Designated Holders participating in such S-3 Registration.
(b)
Form S-3 Underwriting Procedures
. If the S-3 Initiating Holders so elect, the Company shall
use its commercially reasonable efforts to cause such S-3 Registration pursuant to this Section 5
to be in the form of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter selected in accordance
with Section 3(f). In connection with any S-3 Registration under Section 5(a) involving an underwritten offering, the Company shall not be
Page 16 of 38
required to include any Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon between the Company,
the Approved Underwriter and the S-3 Initiating Holders, and then only in such quantity as set
forth below. If the Approved Underwriter believes that the registration of all or part of the
Registrable Securities which the S-3 Initiating Holders and the other Designated Holders have
requested to be included would materially adversely affect the success of such public offering,
then the Company shall be required to include in the underwritten offering, to the extent of the
amount that the Approved Underwriter believes may be sold without causing such material adverse
effect,
first
, such number of Registrable Securities of the Designated Holders requested to
be included in the offering pursuant to the terms of Section 5(a) hereof, which such Registrable
Securities shall be allocated pro rata among such Designated Holders participating in the offering
(on an as converted basis), based on the number of Registrable Securities held by such Designated
Holder, and
second
, any other securities of the Company requested by the Company or other
stockholders to be included in such registration.
(c)
Limitations on
Form S-3
Registrations
. If the Board of Directors has a Valid Business Reason,
the Company may (x) postpone filing a Registration Statement relating to a S-3 Registration until
such Valid Business Reason no longer exists, but in no event for more than forty-five (45) days
after the date when the S-3 Registration was requested or, if later, after the occurrence of the
Valid Business Reason and (y) in case a Registration Statement has been filed relating to a S-3
Registration, the Company, upon the approval of a majority of the Board of Directors, may cause
such Registration Statement to be withdrawn and its effectiveness terminated or may postpone
amending or supplementing such Registration Statement (in which case, if the Valid Business Reason
no longer exists or if more than forty-five (45) days have passed since such withdrawal or
postponement, the S-3 Initiating Holder may request the prompt amendment or supplement of such
Registration Statement or a new S-3 Registration). The Company shall give written notice of its
determination to postpone or withdraw a Registration Statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after
the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may
not postpone or withdraw a filing, under either this Section or Section 3(a), due to a Valid
Business Reason more than once in any six (6) month period. In addition, the Company shall not be
required to effect any registration pursuant to Section 5(a), (i) within ninety (90) days after the
effective date of any other Registration Statement of the Company (other than a Registration
Statement on Form S-4 or S-8 or any successor form thereto or an automatic shelf registration on
Form S-3), (ii) if the Specified Holders are the S-3 Initiating Holders and a Registration
Statement on Form S-3 has previously been requested by the Specified Holders under Section 5(a) and
declared effective (subject to the first sentence of this Section 5(c)), (iii) if Form S-3 is not
available for such offering by the S-3 Initiating Holders or (iv) if the S-3 Initiating Holders,
together with the Designated Holders (other than S-3 Initiating Holders which have requested an S-3
Registration under Section 5(a)) registering Registrable Securities in such registration, propose
to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price
of the Registrable Securities on the last date on which the Company could receive requests for
inclusion in such S-3 Registration under Section 5(a)) to the public of less than $20,000,000
Page 17 of 38
(except with respect to a S-3 Registration requested by the Specified Holders in which all of the
Registrable Securities held by the Specified Holders are registered).
(d)
Expenses
. Except as provided in Section 8(d), the Company shall bear all Registration
Expenses in connection with any S-3 Registration pursuant to this Section 5, whether or not such
S-3 Registration becomes effective.
6. HEDGING TRANSACTIONS.
(a) In any S-3 Registration, the S-3 Initiating Holders may elect to engage in a Hedging
Transaction. The Company agrees that, in connection with any proposed Hedging Transaction, if, in
the reasonable judgment of a firm of legal counsel designated by the Majority Designated Holders
(after good-faith consultation with counsel to the Company), it is necessary or desirable to
register under the Securities Act such Hedging Transaction or sales or transfers (whether short or
long) of Registrable Securities in connection therewith, then the Company shall use all
commercially reasonable efforts to file a Registration Statement on Form S-3 as may reasonably be
required to register such Hedging Transactions or sales or transfers of Registrable Securities in
connection therewith under the Securities Act in a manner consistent with the rights and
obligations of the Company hereunder with respect to the registration of Registrable Securities.
Any information regarding the Hedging Transaction included in a Registration Statement or
Prospectus pursuant to this Section 6(a) shall be deemed to be information provided by the
Designated Holders selling Registrable Securities pursuant to such Registration Statement for
purposes of Section 9.
(b) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate
thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required
to provide customary indemnities to the Company regarding the Plan of Distribution and like
matters.
(c) The Company further agrees to include, under the caption Plan of Distribution (or the
equivalent caption), in each Registration Statement and any related prospectus (to the extent such
inclusion is permitted under applicable Commission regulations and is consistent with comments
received from the Commission during any Commission review of the Registration Statement), language
substantially in the form of Annex A hereto, and to include in each prospectus supplement filed in
connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the
relevant Designated Holder and the Hedging Counterparty describing such Hedging Transaction.
7. HOLDBACK AGREEMENTS.
(a)
Restrictions on Public Sale by Designated Holders
.
(i) To the extent requested by the Approved Underwriter or the Company Underwriter, as the
case may be, in the case of an underwritten public offering, each Designated Holder (other than any
Pledgee or Hedging Counterparty), agrees (x) not to effect any public sale or distribution of any
Registrable Securities or of any securities convertible into or exchangeable or exercisable for such Registrable Securities, including a
Page 18 of 38
sale pursuant to Rule 144 (or any successor rule or regulation) under the Securities Act, or offer
to sell, contract to sell (including without limitation any short sale), grant any option to
purchase or enter into any hedging or similar transaction with the same economic effect as a sale
of any Registrable Securities and (y) except as otherwise consented to by the Company, not to make
any request for a Demand Registration or S-3 Registration under this Agreement during the period
beginning on the effective date of any Registration Statement relating to a registration in which
Designated Holders of Registrable Securities are participating and ending on the ninetieth
(90
th
) day following the actual effective date of such Registration Statement, or such
other period (not to extend past 180 days after such effective date), if any, mutually agreed upon
by such Designated Holder and the requesting party (except as part of such registration). In
connection with the Initial Public Offering, in lieu of the foregoing provisions of this Section
7(a), each Designated Holder shall comply with the terms of its Lock-up Agreement.
(ii) Notwithstanding anything herein to the contrary, no Pledgee or Hedging Counterparty shall
be required to agree to any restriction on its ability to trade in any securities, including the
restrictions set forth in this Section 7(a). The Designated Holders hereby agree that they shall
act in good faith with respect to the restrictions set forth in Section 7(a) and shall take no
action or omit to take any action with the intention of circumventing or evading the restrictions
applicable to them under this 7(a).
(b)
Restrictions on Public Sale by the Company
. Unless the Company shall have received the prior
written consent of an Adelson Holder or Adelson Holders, in each case holding a majority of the
aggregate Registrable Securities held by all Adelson Holders, the Company agrees not to effect any
public sale or distribution of any of its securities, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to registrations on Form S-4 or
S-8 or any successor form thereto), during the period beginning on the effective date of any
Registration Statement relating to a registration in which the Designated Holders of Registrable
Securities are participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) 90 days after the actual
effective date of such Registration Statement (except as part of such registration).
8. REGISTRATION PROCEDURES.
(a)
Obligations of the Company
. Whenever registration of Registrable Securities has been
requested pursuant to Section 3, Section 4, or Section 5 of this Agreement, the Company shall use
its commercially reasonable efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method of distribution thereof as quickly as
practicable, and in connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the Commission (as promptly as practicable, but in any event not
later than ninety (90) days after receipt of a request to file a Registration Statement with
respect to Registrable Securities) a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of such Registrable Securities in
Page 19 of 38
accordance with the intended method of distribution thereof, and cause such Registration Statement
to become effective;
provided
,
however
, that (x) before filing a Registration
Statement or prospectus or any amendments or supplements thereto, the Company shall provide one
firm of legal counsel selected by the Designated Holders holding a majority of the Registrable
Securities being registered in such registration (
Holders Counsel
) and any other
Inspector (as hereinafter defined) with an opportunity to review and comment on such Registration
Statement and each prospectus included therein (and each amendment or supplement thereto) to be
filed with the Commission, subject to such documents being under the Companys control, and (y) the
Company shall notify the Holders Counsel and each seller of Registrable Securities of any stop
order issued or threatened by the Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of (x) 120 days (except in the case of a
registration filed pursuant to Rule 415 of the Securities Act or any successor rule or regulation)
and (y) such shorter period which will terminate when all Registrable Securities covered by such
Registration Statement have been sold, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers thereof set forth in
such Registration Statement;
(iii) furnish to each seller of Registrable Securities such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such Registration Statement (including each preliminary
prospectus) and any prospectus filed under Rule 424 under the Securities Act (or any successor rule
or regulation) as each such seller may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller of Registrable Securities may reasonably request, and to
continue such qualification in effect in such jurisdiction for as long as permissible pursuant to
the laws of such jurisdiction, or for as long as any such seller requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all other acts and things
which may be reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such seller;
provided
,
however
, that the Company shall not be required to (x) qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 8(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z) consent to general
service of process in any such jurisdiction;
(v) notify each seller of Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in such Registration Statement contains an untrue statement of a material fact or
Page 20 of 38
omits to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading and the Company
shall promptly prepare a supplement or amendment to such prospectus and furnish to each seller of
Registrable Securities a reasonable number of copies of such supplement to or an amendment of such
prospectus as may be necessary so that, after delivery to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(vi) enter into and perform customary agreements (including an underwriting agreement in
customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided
in Section 3, Section 4 or Section 5, as the case may be) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities, including causing its officers to participate in road shows and other information
meetings organized by the Approved Underwriter or Company Underwriter;
(vii) make available at reasonable times for inspection by any managing underwriter or
broker/dealer participating in any disposition of such Registrable Securities pursuant to a
Registration Statement, any attorney retained by any such managing underwriter or broker/dealer and
Holders Counsel (each, an
Inspector
and collectively, the
Inspectors
), all
financial and other records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the
Records
) as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Companys and its subsidiaries
officers, directors and employees, and the independent public accountants of the Company, to supply
all information reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the Inspectors (and the
Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall
so request) unless (x) the disclosure of such Records is necessary, in the Companys judgment, to
avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction
after exhaustion of all appeals therefrom or (z) the information in such Records was known to the
Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made
generally available to the public. Each seller of Registrable Securities agrees that it shall,
upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Companys expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential. In the event that the Company is
unsuccessful in preventing the disclosure of such Records, such seller agrees that it shall furnish
only portion of those Records which it is advised by counsel is legally required and shall exercise
all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to
those Records;
Page 21 of 38
(viii) if such sale is pursuant to an underwritten offering, obtain cold comfort letters
dated the effective date of the Registration Statement and the date of the closing under the
underwriting agreement from the Companys independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as the managing
underwriter reasonably requests;
(ix) furnish, at the request of any seller of Registrable Securities on the date such
securities are delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of counsel representing
the Company for the purposes of such registration, addressed to the underwriters, if any, and to
the seller making such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(x) comply with all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable but no later than fifteen (15) months after
the effective date of the Registration Statement, an earnings statement covering a period of twelve
(12) months beginning after the effective date of the Registration Statement, in a manner which
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed,
provided
that the applicable
listing requirements are satisfied;
(xii) cooperate with each seller of Registrable Securities and each underwriter participating
in the disposition of such Registrable Securities and their respective counsel in connection with
any filings required to be made with the NASD;
(xiii) use its commercially reasonable efforts to cause the Registrable Securities covered by
such Registration Statement to be registered with or approved by such other governmental agencies
or authorities, including but not limited to gaming authorities, as may be reasonably necessary by
virtue of the business and operations of the Company to enable the seller or sellers of Registrable
Securities to consummate the disposition of such Registrable Securities; and
(xiv) take all other steps reasonably necessary to effect the registration of the Registrable
Securities contemplated hereby and reasonably cooperate with the holders of such Registrable
Securities to facilitate the disposition of such Registrable Securities pursuant thereto.
(b)
Seller Information
. The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish, and such seller shall furnish, to the Company such
information required to be included in such Registration Statement by applicable securities laws or
otherwise necessary or desirable in connection with
Page 22 of 38
the disposition of such Registrable Securities as the Company may from time to time reasonably
request in writing. If any seller of Registrable Securities fails to provide such information
required to be included in such Registration Statement by applicable securities laws or otherwise
necessary or desirable in connection with the disposition of such Registrable Securities in a
timely manner after written request therefor, the Company may exclude such seller s Registrable
Securities from a registration under Sections 3, 4 or 5 hereof. Each Designated Holder shall
promptly furnish to the Company in writing all information required to be disclosed in order to
make the information previously furnished to the Company for use in connection with any such
Registration Statement by such Designated Holder not materially misleading or necessary to cause
such Registration Statement not to omit a material fact with respect to such Designated Holder
necessary in order to make the statements therein not misleading.
(c)
Notice to Discontinue
. Each Designated Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 8(a)(v), such Designated
Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Designated Holders receipt
of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(v) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at the Companys
expense) all copies, other than permanent file copies then in such Designated Holders possession,
of the prospectus covering such Registrable Securities which is current at the time of receipt of
such notice. If the Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 8(a)(ii)) by the number of days
during the period from and including the date of the giving of such notice pursuant to Section
8(a)(v) to and including the date when sellers of such Registrable Securities under such
Registration Statement shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 8(a)(v).
(d)
Registration Expenses
. The Company shall pay all expenses arising from or incident to its
performance of, or compliance with, this Agreement, including, without limitation, (i) Commission,
stock exchange and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with State securities or blue sky laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with blue sky qualifications
of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and expenses of counsel to the
Company and of its independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses arising from any
cold comfort letters or any special audits incident to or required by any registration or
qualification) and, if any Adelson Holder is participating in the registration, the reasonable
legal fees, charges and expenses of one law firm designated by the holders of a majority of the
Registrable Securities participating in any registration incurred by the Designated Holders in any
such registration and (v) any liability insurance or other premiums for insurance obtained in
connection with
Page 23 of 38
any Demand Registration or piggy-back registration thereon, Incidental Registration or S-3
Registration pursuant to the terms of this Agreement, regardless of whether such Registration
Statement is declared effective. All of the expenses described in the preceding sentence of this
Section 8(d) are referred to herein as
Registration Expenses
. The Designated Holders of
Registrable Securities sold pursuant to a Registration Statement shall bear the expense of any
brokers commission or underwriters discount or commission relating to registration and sale of
such Designated Holders Registrable Securities and shall, other than as set forth in clause (iv)
above, bear the fees and expenses of their own counsel. Notwithstanding the foregoing, each
Designated Holder (other than the Adelson Holders) agrees to pay or reimburse the Company for its
pro rata portion of all Registration Expenses for any registration in which its Registrable
Securities are included (based upon the number of Registrable Securities included in such
registration (on an as converted basis)) and agrees that such expenses may be withheld by the
Company from the offering proceeds payable to such Designated Holder.
9. INDEMNIFICATION; CONTRIBUTION.
(a)
Indemnification by the Company
. The Company agrees to indemnify and hold harmless each
Designated Holder, its partners, directors, officers, affiliates, members, employees, trustees and
each Person who controls (within the meaning of Section 15 of the Securities Act) such Designated
Holder from and against any and all losses, claims, damages, liabilities and expenses (each, a
Liability
and collectively,
Liabilities
), arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as amended or
supplemented if the Company shall have furnished any amendments or supplements thereto) or arising
out of or based upon any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading under the
circumstances such statements were made, except insofar as such Liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged omission contained in
such Registration Statement, preliminary prospectus or final prospectus in reliance and in
conformity with information concerning such Designated Holder furnished in writing to the Company
by such Designated Holder expressly for use therein, including, without limitation, the information
furnished to the Company pursuant to Sections 8(b) and 9(b). The Company shall also provide
customary indemnities to any underwriters of the Registrable Securities, their officers, directors
and employees and each Person who controls such underwriters (within the meaning of Section 15 of
the Securities Act) to the same extent as provided above with respect to the indemnification of the
Designated Holders of Registrable Securities.
(b)
Indemnification by Designated Holders
. Each Designated Holder agrees severally to indemnify
and hold harmless the Company, the other Designated Holders who participate in the Registration
Statement, any underwriter retained by the Company and each Person who controls the Company, the
other Designated Holders who participate in the Registration Statement or such underwriter (within
the meaning of Section 15 of the Securities Act) to the same extent as the foregoing indemnity from
the Company to the Designated Holders (including indemnification of their respective partners,
Page 24 of 38
directors, officers, members, employees and trustees), but only to the extent that Liabilities arise out
of or are based upon a statement or alleged statement or an omission or alleged omission that was
made in reliance upon and in conformity with information with respect to such Designated Holder
furnished in writing to the Company by such Designated Holder expressly for use in such
Registration Statement or prospectus, including, without limitation, the information furnished to
the Company pursuant to Section 8(b) and this Section 9(b);
provided
,
however
, that
the total amount to be indemnified by such Designated Holder pursuant to this Section 9(b) shall be
limited to the net proceeds received by such Designated Holder in the offering to which the
Registration Statement or prospectus relates.
(c)
Conduct of Indemnification Proceedings
. Any Person entitled to indemnification or
contribution hereunder (the
Indemnified Party
) agrees to give prompt written notice to
the indemnifying party (the
Indemnifying Party
) after the receipt by the Indemnified
Party of any written notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement;
provided
,
however
, that the failure so to
notify the Indemnifying Party shall not relieve the Indemnifying Party of any Liability that it may
have to the Indemnified Party hereunder (except to the extent that the Indemnifying Party is
materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such
failure). If notice of commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory to such
Indemnified Party. Each Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of such counsel shall
be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the
Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory
to the Indemnified Party or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and such parties have been
advised by such counsel that either (x) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to the Indemnified
Party which are different from or additional to those available to the Indemnifying Party. In any
of such cases, the Indemnifying Party shall not have the right to assume the defense of such action
on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties and all such expenses
shall be reimbursed as incurred. No Indemnifying Party shall be liable for any settlement entered
into without its written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which such Indemnified Party is a party and
indemnity has been sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability for claims that are the subject
matter of such proceeding. Notwithstanding the foregoing, if at any time an Indemnified Party
shall
Page 25 of 38
have requested the Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel as contemplated by this Section 9, the Indemnifying Party agrees that it shall be liable
for any settlement of any proceeding effected without the Indemnifying Partys written consent if
(i) such settlement is entered into more than thirty (30) business days after receipt by the
Indemnifying Party of the aforesaid request and (ii) the Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request or contested the reasonableness of
such fees and expenses prior to the date of such settlement.
(d)
Contribution
. If the indemnification provided for in this Section 9 from the Indemnifying
Party is unavailable to an Indemnified Party hereunder or insufficient to hold harmless an
Indemnified Party in respect of any Liabilities referred to herein, then each Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such Liabilities in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party,
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the Liabilities referred
to above shall be deemed to include, subject to the limitations set forth in Sections 9(a), 9(b)
and 9(c), any legal or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding; provided that the total amount to be contributed
by any Designated Holder shall be limited to the net proceeds received by such Designated Holder in
the offering.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 9(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 in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
Page 26 of 38
10. RULE 144. The Company covenants that from and after the IPO Effectiveness Date it shall take
such action as may be required from time to time to enable such Designated Holder to sell
Registrable Securities without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time
to time, or (ii) any similar rules or regulations hereafter adopted by the Commission. The Company
shall, upon the request of any Designated Holder, deliver to such Designated Holder a written
statement as to whether it has complied with such requirements.
11. MISCELLANEOUS.
(a)
Registration Defaults.
In the event that a Registration Default shall occur, the Company shall
pay to each holder of the Securities (or Common Stock for which the Warrants have been exercised)
issued to the Adelson Purchaser pursuant to the Securities Purchase and Exchange Agreement (whether
such Securities or Common Stock continue to be held by the Adelson Purchaser or another Adelson
Holder) that are Transfer Restricted Securities during any period in which a Registration Default
has occurred or is continuing in an amount (the
Liquidated Damages
) equal to: (i)
one-half of one percent (50 basis points) per annum on the aggregate Liquidation Preference (as
such term is defined in the Certificate of Designations) in respect of any Preferred Stock
constituting Transfer Restricted Securities then held directly or beneficially by the Adelson
Purchaser or another Adelson Holder for the period up to and including the 90th day during which
such Registration Default has occurred and is continuing; and (ii) one percent (100 basis points)
per annum on the aggregate liquidation preference in respect of the Preferred Stock constituting
Transfer Restricted Securities then held directly or beneficially by the Adelson Purchaser or
another Adelson Holder for the period including and subsequent to the 91st day during which such
Registration Default has occurred and is continuing;
provided
,
however
, that in the
event that any such holder only holds Warrants (or Common Stock for which the Warrants have been
exercised) at the time of such Registration Default, Liquidated Damages shall be determined in
accordance with the foregoing clauses (i) or (ii), as the case may be, as though such holder then
holds such amount of Preferred Stock constituting Transfer Restricted Securities as was issued
pursuant to the Securities Purchase and Exchange Agreement in proportion to the amount of Warrants
(or the amount of Warrants the exercise of which yielded the Common Stock) then actually held by
such holder. Following the cure of all Registration Defaults, Liquidated Damages will cease to
accrue with respect to such Registration Defaults. All accrued Liquidated Damages shall be paid by
the Company on a quarterly basis in cash to the date of such cure and Liquidated Damages will be
calculated on the basis of a 360-day year consisting of twelve 30-day months. The parties hereto
agree that the Liquidated Damages provided for in this Section 11(a) constitute a reasonable
estimate of the damages that may be incurred by holders of the Securities (and Common Stock for
which the Warrants have been exercised) by reason of a Registration Default and that such
Liquidated Damages are the only monetary damages available to such holders in the event of a
Registration Default.
(b)
Waiver of Registration Rights with Respect to Certain Offerings.
Page 27 of 38
The Adelson Holders party to this agreement hereby confirm their waiver of registration and
offering rights hereunder with respect to the filing by the Company of its Registration Statement
on Form S-3ASR (File No. 333-155100) on November 6, 2008, and the offering and sale by the Company
of Common Stock, Perpetual Preferred Stock, and Warrants pursuant to the Prospectus Supplement
filed by the Company on November 10, 2008, which offering is closing on the date hereof, it being
understood that such waiver shall not apply to any other registration or offering with respect to
the Common Stock, Preferred Stock, Warrants or any other Registrable Securities.
(c)
Stock Splits, etc.
The provisions of this Agreement shall be appropriately adjusted for any
stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof.
(d)
No Inconsistent Agreements
. The Company hereby represents and warrants that it has not
previously entered into any agreement granting registration rights to any Person with respect to
any securities of the Company. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Designated Holders in this Agreement
or grant any additional registration rights to any Person or with respect to any securities that
are not Registrable Securities which rights are inconsistent with the rights granted in this
Agreement.
(e)
Remedies
. The Designated Holders, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, shall be entitled to specific performance of their
rights under this Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense that a remedy at law
would be adequate.
(f)
Amendments and Waivers
. Except as otherwise provided herein, the provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless consented to in writing by the Company and Designated
Holders holding more than 50% of the Registrable Securities;
provided
,
however
,
that no amendment, modification, supplement, waiver or consent to depart from the provisions hereof
shall be effective if such amendment, modification, supplement, waiver or consent to depart from
the provisions hereof materially and adversely affects the substantive rights or obligations of one
Designated Holder, or group of Designated Holders, without a similar and proportionate effect on
the substantive rights or obligations of all Designated Holders, unless each such
disproportionately affected Designated Holder consents in writing thereto.
(g)
Notices
. All notices, demands and other communications provided for or permitted hereunder
shall be made in writing and shall be made by registered or certified first-class mail, return receipt requested, telecopier, courier service or
personal delivery.
All such notices, demands and other communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier,
Page 28 of 38
if delivered by
commercial courier service; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed; and when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 11(e) designate another address or Person for receipt
of notices hereunder.
(h)
Permitted Assignees; Third Party Beneficiaries
. This Agreement shall inure to the benefit of
and be binding upon the permitted assignees of the parties hereto as provided in Section 2(d).
Except as provided in Section 9, no Person other than the parties hereto and their permitted
assignees is intended to be a beneficiary of this Agreement.
(i)
Counterparts; Headings
.
This Agreement may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(j)
GOVERNING LAW
.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(k)
Severability
. If any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired.
(l)
Rules of Construction
. Unless the context otherwise requires, references to sections or
subsections refer to sections or subsections of this Agreement.
[Agreement Continues on Page 29]
Page 29 of 38
(m)
Entire Agreement
.
This Agreement is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no restrictions, promises,
representations, warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings among the parties with respect to
such subject matter.
(n)
Further Assurances
. Each of the parties shall execute such documents and perform such further
acts as may be reasonably required or desirable to carry out or to perform the provisions of this
Agreement.
(o)
Other Agreements
. Nothing contained in this Agreement shall be deemed to be a waiver of, or
release from, any obligations any party hereto may have under, or any restrictions on the transfer
of Registrable Securities or other securities of the Company imposed by, any other agreement.
IN WITNESS WHEREOF, the undersigned have executed, or
have caused to be executed, this Amended and Restated
Registration Rights Agreement on the date first written
above.
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
SHELDON G. ADELSON 2002
REMAINDER TRUST
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By:
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/s/
Timothy D. Stein
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Timothy D. Stein
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Trustee
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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Page 30 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON 2005 FAMILY TRUST U/D/T DATED APRIL 25,
2005
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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DR. MIRIAM AND SHELDON G. ADELSON CHARITABLE TRUST U/D/T
DATED DECEMBER 12, 1994
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By:
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/s/ Sheldon G. Adelson 
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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ESBT Y TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 31 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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ESBT S TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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QSST A TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 32 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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QSST M TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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SHELDON G. ADELSON 2004 REMAINDER TRUST U/D/T MAY 31,
2004
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By:
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/s/ Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 33 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON 2007 TWO YEAR LVS ANNUITY TRUST
U/D/T DATED MAY 1, 2007
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON 2007 THREE YEAR LVS ANNUITY TRUST
U/D/T DATED MAY 1, 2007
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON JULY 2007 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 30, 2007
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 34 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON JULY 2007 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 30, 2007
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON APRIL 2008 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED APRIL 1, 2008
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON APRIL 2008 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED APRIL 1, 2008
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Irwin Chafetz
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Irwin Chafetz
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 35 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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/s/
Miriam Adelson
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Dr. Miriam Adelson
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SHELDON G. ADELSON JULY 2008 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 28, 2008
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Timothy D. Stein
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Timothy D. Stein
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Trustee
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SHELDON G. ADELSON JULY 2008 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 28, 2008
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By:
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/s/
Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/
Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 36 of 38
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating Officer and Secretary
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[Signature Page to Registration Rights Agreement]
Page 37 of 38
Annex A
Plan of Distribution
A selling stockholder may also enter into hedging and/or monetization transactions. For
example, a selling stockholder may:
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enter into transactions with a broker-dealer or affiliate of a broker-dealer or other third
party in connection with which that other party will become a selling stockholder and engage
in short sales of our common stock under this prospectus, in which case the other party may
use shares of our common stock received from the selling stockholder to close out any short
position;
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sell short our common stock under this prospectus and use shares of our common stock held
by the selling stockholder to close out any short position;
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enter into options, forwards or other transactions that require the selling stockholder to
deliver, in a transaction exempt from registration under the Securities Act, shares of our
common stock to a broker-dealer or an affiliate of a broker-dealer or other third party who
may then become a selling stockholder and publicly resell or otherwise transfer shares of our
common stock under this prospectus;
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loan or pledge shares of our common stock to a broker-dealer or affiliate of a
broker-dealer or other third party who may then become a selling stockholder and sell the
loaned shares or, in an event of default in the case of a pledge, become a selling stockholder
and sell the pledged shares, under this prospectus; or
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enter into derivative transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those derivatives, the third parties may
sell securities covered by this prospectus and the applicable prospectus supplement, including
in short sale transactions. If so, the third party may use securities pledged by the selling
stockholder or borrowed from the selling stockholder or others to settle those sales or to
close out any related open borrowings of stock, and may use securities received from the
selling stockholder in settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions will be an underwriter and will
be identified in the applicable prospectus supplement (or a post effective amendment).
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Annex A to Registration Rights Agreement
Page 38 of 38