Common Stock, Par Value $0.001
Per Share
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
Certain
stockholders named in Schedule II hereto (the “Selling
Stockholders”) of Las Vegas Sands Corp., a Nevada corporation
(the “Company”), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an
aggregate of
[ ]
shares (the “Firm Shares”) and, at the election of the
Underwriters, up to
[ ]
additional shares (the “Optional Shares”) of common
stock, par value $0.001 per share (the “Stock”), of the
Company (the Firm Shares and the Optional Shares which the
Underwriters elect to purchase pursuant to Section 2 hereto
are herein collectively called the
“Shares”).
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A
registration statement on Form S-1 (File No. 333-131845) (the
“Initial Registration Statement”) in respect of the
Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement
and any post-effective amendment thereto, each in the form
heretofore delivered to you for each of the other Underwriters,
and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, have
been declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the
offering (a “Rule 462(b) Registration Statement”),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or to the Company’s
knowledge after reasonable investigation,
threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under
the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
“Registration Statement”; the Preliminary Prospectus
relating to the Shares that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in
Section 1(c) hereof) is hereinafter called the “Pricing
Prospectus”; and the final prospectus relating to the Shares,
in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the “Prospectus”; any reference
herein to any Preliminary Prospectus, the Pricing 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-1 under the Act, as of the date of such prospectus; and any
“issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares 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 to 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 or by a Selling Stockholder expressly for use
therein;
(c) For the
purposes of this Agreement, the “Applicable Time" is
[ ]
am/pm (Eastern time) on the date of this Agreement; the Pricing
Prospectus, as supplemented by the price to the public
(collectively, the “Pricing Disclosure Package”) as of
the Applicable Time, did not include any untrue statement of
a
2
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 or by a Selling Stockholder expressly for use therein. Each
Issuer Free Writing Prospectus listed on Schedule III 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. or by a
Selling Stockholder 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
to the requirements of the Act or the Securities Exchange Act of
1934, as amended (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 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 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. or by a Selling Stockholder expressly for use
therein;
(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, in the light of the circumstances
under which they were made, 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
3
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. or by a Selling Stockholder expressly for
use therein;
(f) Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, except as set
forth in the Pricing Prospectus, (i) neither the Company nor
any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, which are material, individually
or in the aggregate, to the Company and its subsidiaries, taken as
a whole, nor entered into any material transaction not in the
ordinary course of business (other than additional draws made under
existing credit facilities), (ii) except as contemplated by
the Pricing Prospectus and except for the issuance of shares
pursuant to the exercise of outstanding options, there has not been
any change in the Company’s capital stock or 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
(or other) of the Company or any of its subsidiaries,
(iii) neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Pricing Prospectus any material loss or
interference with its business, whether or not covered by
insurance, otherwise than as contemplated by the Pricing Prospectus
and (iv) since the date of the latest audited financial
statements included in the Pricing Prospectus and except as
contemplated by the Pricing Prospectus, there has not been 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 otherwise), stockholders’ equity, or
results of operations of the Company and its subsidiaries, taken as
a whole, nor have any events occurred which, singly or in the
aggregate, have a material adverse effect on the sale of the Shares
by the Selling Stockholders or the consummation of the transactions
contemplated hereby (any change or event described in (iv) of
this clause (f), 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
4
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 have a Material Adverse Effect; and each of
Las Vegas Sands, LLC, Interface Group-Nevada, Inc., Lido Casino
Resort Holding Company, LLC, Lido Casino Resort, LLC, Phase II Mall
Subsidiary, LLC, Phase II Mall Holding, LLC, Venetian Macau S.A.,
Venetian Venture Development Intermediate Limited and Venetian
Cotai S.A. (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 authorized and validly issued, are fully
paid and non-assessable, and conform to the description of the
Stock contained in the Pricing 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 authorized
and validly issued, are fully paid and non-assessable and, except
as set forth in the Pricing Prospectus and other than as set forth
on Schedule V, will be owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(j) This
Agreement has been duly authorized, executed and delivered by the
Company;
(k) The sale
of the Shares by the Selling Stockholders and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a
5
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 Certificate of Incorporation or By-laws or
limited liability company agreement, as applicable, of the Company
or any of its subsidiaries or (iii) 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 no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required by the
Company for the sale of the Shares by the Selling Stockholders or
the consummation by the Company of the transactions contemplated by
this Agreement, except the registration under the Act of the
Shares, 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
Shares 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;
(l) 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, agreement,
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;
(m) The
statements set forth in the Pricing Prospectus under the caption
“Description of Capital Stock,” insofar as they purport
to constitute a summary of the terms of the Stock, and under the
caption “Underwriting,” insofar as they purport to
describe the provisions of the laws and documents referred to
therein, and incorporated by reference into the Pricing Prospectus
from the Company’s Annual Report on Form 10-K for the year
ended December 31, 2005 under the caption
“Business-Regulation and Licensing,” 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;
(n) 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
6
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 Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(o) The
Company is not and, after giving effect to the sale of the Shares
by the Selling Stockholders, will not be an “investment
company,” as such term is defined in the Investment Company
Act of 1940, as amended (the “Investment Company
Act”);
(p) At the
time of filing the Initial Registration Statement the Company was
not and is not an “ineligible issuer,” as defined under
Rule 405 under the Act;
(q) The
consolidated historical financial statements, together with related
schedules and notes, set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus fairly present 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 in the Registration Statement 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;
(r) PricewaterhouseCoopers
LLP, who has audited certain financial statements of the Company
and its subsidiaries, is an independent registered public
accounting firm as required by the Act and the rules and
regulations of the Commission thereunder;
(s) 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, in each case, other than as
would not have a Material Adverse Effect, or as otherwise described
in the Pricing Prospectus;
(t) 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
7
“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;
(u) 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;
(v) 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;
(w) Except as
disclosed in the Pricing Prospectus, including, without limitation
under the caption entitled “Risk Factors—Risks Related
to Our
8
Business—Our 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 Company’s 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 Factors—Risks Related
to Our Business—Our 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;
(x) 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;
(y) 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;
9
(z) 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 (i), (ii) or (iii), as would not have
a Material Adverse Effect;
(aa) 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;
(bb) 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
10
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 have a Material
Adverse Effect;
(cc) 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 management’s 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 management’s 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;
(dd) 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 finder’s fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement;
and
(ee) 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.
2. Each of
the Selling Stockholders severally represents and warrants to, and
agrees with, the Underwriters and the Company that:
(a) All
consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this
Agreement, and for the sale and delivery of the Shares to be sold
by such Selling Stockholder hereunder, have been obtained except
for such consents, approvals, authorization and orders as would not
materially interfere with the consummation of the transactions
contemplated hereby; and such Selling Stockholder has full right,
power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(b) The sale
of the Shares to be sold by such Selling Stockholder hereunder and
the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the consummation of the
transactions herein 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 any agreement or instrument
11
to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject except for such conflict, breach, violation
or defaults as would not materially interfere with the consummation
of the transactions contemplated hereby, nor will such action
result in any violation of the provisions of any statute applicable
to such Selling Stockholder or any order, rule or regulation
applicable to such Selling Stockholder of any court or governmental
agency or body having jurisdiction over such Selling Stockholder or
the property of such Selling Stockholder except for such violations
as would not materially interfere with the consummation of the
transactions contemplated hereby;
(c) Immediately
prior to the Time of Delivery, such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Shares and payment
therefor pursuant hereto, good and valid title to such Shares, free
and clear of all liens, encumbrances, equities or claims, will pass
to the Underwriters;
(d) Such
Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(e) To the
extent that any statements or omissions made in the Registration
Statement, the Prospectus, the Pricing Prospectus or any Issuer
Free Writing Prospectus or any amendment or supplement thereto are
made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for
use therein, the Registration Statement did not, when it became
effective, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, the Pricing Prospectus or any Issuer Free Writing
Prospectus, and any further amendments or supplements thereto, when
they were or are filed with the Commission, as the case may be, did
not and will not, as the case may be, contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement,
the Prospectus, the Pricing Prospectus or any Issuer Free Writing
Prospectus or any amendment or supplement thereto made in reliance
upon and in conformity with written information furnished to the
Company by an Underwriter expressly for use therein;
12
(f) During
the period beginning from the date hereof and continuing to and
including the date applicable to each Selling Stockholder as set
forth in Schedule IV hereto (the “Lock-Up
Period”), not to offer, sell, contract to sell, pledge, grant
any option to purchase, make any short sale or otherwise dispose
of, except as provided hereunder, any shares of Stock or securities
that are convertible into, exchangeable for, or that represent the
right to receive, Stock or any substantially similar securities,
whether now or hereafter acquired (the “Lock-Up
Securities”), without the prior written consent of Goldman,
Sachs & Co. Notwithstanding the foregoing, the Selling
Stockholders may make offers, sales, agreements to offer or sell,
solicitations of offers to purchase, swaps, or other disposal of,
or transactions in, any Lock-Up Securities (i) to one or more
organizations which are tax exempt under Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, and including, but
not limited to, the Dr. Miriam and Sheldon G. Adelson
Charitable Trust u/d/t dated December 12, 1994, as amended;
provided, that the aggregate amount transferred under this sub
clause shall not exceed the sum of one hundred million dollars
($100,000,000.00), (ii) 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 in this Section 2(f),
(iii) to any beneficiary of a Selling Stockholder or any trust
for the direct or indirect benefit of a beneficiary of a Selling
Stockholder or the immediate family of such beneficiary, provided
that the beneficiary of such Selling Stockholder, the immediate
family member or the trustee of the trust, as applicable, agrees to
be bound in writing by the restrictions set forth in this
Section 2(f), 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
Commission, the Selling Stockholder shall notify Goldman, Sachs
& Co. upon making such filing, (iv) with the prior written
consent of Goldman, Sachs & Co. on behalf of the Underwriters,
or (v) to any beneficiary of or estate of a beneficiary of a
Selling Stockholder pursuant to a trust, will or other testamentary
document or applicable laws of descent; provided, however, that if
(1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material
news or a material event or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period following the last day of
the init
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