EXHIBIT 1.12
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement") is made and
entered into as of the 7th day of August, 2002, by and between Penn National
Gaming, Inc., a Pennsylvania corporation ("Parent"), Hollywood Casino
Corporation, a Delaware corporation ("Company"), and Xxxx X. Xxxxx
("Stockholder"). Parent, Company and Stockholder are sometimes referred to in
this Agreement individually as a "Party" or collectively as the "Parties."
RECITALS
This Agreement is entered into with reference to the following
facts, objectives and definitions:
A. Contemporaneously with the execution and delivery of this
Agreement, Parent, P Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Company, are entering into
an Agreement and Plan of Merger, dated as of the date of this Agreement (the
"Merger Agreement"), pursuant to which it is contemplated that Company will
merge (the "Merger") with Merger Sub, upon the terms and conditions set forth in
the Merger Agreement; and
B. The Board of Directors of Company (the "Company Board") has
previously approved the Merger Agreement and the execution and delivery by
Company of this Agreement; and
C. On the date hereof each of the other stockholders of
Company set forth on Schedule A attached hereto (collectively, the "Other
Stockholders") is entering into a Stockholder Agreement in a form substantially
similar to this Agreement (collectively, the "Other Stockholder Agreements");
and
D. Stockholder owns, or has rights with respect to, certain of
the outstanding shares of Class A Common Stock, par value $0.0001 per share
("Class A Common Stock"), of Company, and may acquire rights with respect to
additional shares of Class A Common Stock after the date of this Agreement, and
desires to facilitate the consummation of the Merger, and for such purpose and
in order to induce Parent to enter into the Merger Agreement, Stockholder has
agreed, among other matters set forth herein, (i) to vote these shares and (ii)
to grant Parent or its designee an irrevocable proxy to exercise the voting
power of Stockholder with respect to these shares, all as provided in this
Agreement.
NOW, THEREFORE, in consideration of the covenants and
conditions contained in this Agreement, the Parties represent, warrant, and
agree as follows:
AGREEMENT
1. Representations and Warranties of Stockholder. Stockholder
represents and warrants that: (i) Stockholder is the holder of record (free and
clear of any liens, encumbrances, pledges or restrictions except as described
under the heading "Record Share Encumbrances" on Schedule B attached hereto (the
"Record Share Encumbrances")), of the number of outstanding shares of Class A
Common Stock, if any, set forth under the heading "Shares Held of Record" on
Schedule B attached hereto (the "Record Shares"), and, except as may be
described on Schedule B attached hereto, Stockholder possesses the sole right to
vote and dispose of the Record Shares; (ii) Stockholder holds (free and clear of
any liens, encumbrances, pledges or restrictions) the options to acquire shares
of Class A Common Stock, if any, set forth under the heading "Options" on
Schedule B attached hereto (the "Options"); (iii) except as may be described
under the heading "Additional Voting Shares" on Schedule B attached hereto
Stockholder maintains the right to vote or direct the vote of, but does not
solely own and cannot dispose of, the additional shares of Class A Common Stock,
if any, set forth under the heading "Additional Voting Shares" on Schedule B
attached hereto (the "Additional Voting Shares" and, collectively with the
Record Shares as to which Stockholder holds the right to vote, the "Voting
Shares"); (iv) Stockholder holds the right to sell or otherwise dispose of, but
cannot vote or direct the vote of, the additional shares of Class A Common
Stock, if any, set forth under the heading "Additional Disposition Shares" on
Schedule B attached hereto (the "Additional Disposition Shares" and, together
with the Record Shares as to which Stockholder holds the right of disposition,
the "Disposition Shares"; the Record Shares, the Additional Voting Shares, the
Additional Disposition Shares and the New Shares, as hereinafter defined, are
referred to in this Agreement as the "Shares"); (v) Stockholder does not
directly or indirectly hold or beneficially own any shares of capital stock or
other securities of Company, or any option, warrant or other right to acquire
capital stock or other securities of Company, or any option, warrant or other
right to acquire (by purchase, conversion or otherwise) any shares of capital
stock or other securities of Company, other than as described on Schedule B
hereto; (vi) Stockholder has full power and authority to make, enter into, and
carry out the terms of this Agreement; (vii) the execution, delivery, and
performance of this Agreement by Stockholder will not violate any agreement to
which Stockholder is a party, including, without limitation, any voting
agreement, stockholder agreement, or voting trust; and (viii) this Agreement
constitutes the legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms.
2. Agreement to Vote the Shares. The Record Shares are subject to a
voting trust agreement pursuant to which Xxxx X. Xxxxx has been granted an
irrevocable proxy (the "Proxy"), which provides him with the power to vote such
Record Shares. To the extent the Proxy is held invalid, unenforceable or
revoked, Stockholder shall vote all of the Voting Shares over which Stockholder
has sole voting power and will cause all of the Voting Shares over which he has
shared voting power as described on Schedule B to be voted (other than any
Shares that may have been sold in accordance with the terms of this Agreement)
(i) in favor of the Merger Agreement, and the Merger or any transaction
contemplated by the Merger Agreement, (ii) as otherwise necessary or appropriate
to enable Parent, Company and Merger Sub to consummate the transactions
contemplated by the Merger Agreement, (iii) against any action or agreement that
would result in a breach in any material aspect of any covenant, representation,
or warranty or any other obligation or agreement of Company under the Merger
Agreement, (iv) against any action or agreement that would terminate, impede,
interfere with, delay, postpone, or attempt to discourage the Merger, including,
but not limited to: (A) a sale or transfer of a material amount of the assets of
Company or any of its subsidiaries or a reorganization, recapitalization, or
liquidation of Company or any of its subsidiaries, (B) any change in the Company
Board, except as otherwise agreed to in writing by the Parties, (C) any change
in the present capitalization or dividend policy of Company, or (D) any other
change in Company's corporate structure; and (v) against any other proposal
which would result in any of the conditions to Parent's obligations under the
Merger Agreement not being fulfilled.
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3. Grant of Irrevocable Proxy. In the event that the Proxy is held
invalid, unenforceable or revoked and Stockholder does not vote all of the
Voting Shares in accordance with Section 2 hereof, subject to the approval of
all applicable Gaming Authorities (as defined in the Merger Agreement),
Stockholder hereby irrevocably appoints Parent or any designee of Parent the
lawful agent, attorney, and proxy of Stockholder, during the term of this
Agreement, to vote all of the Voting Shares in accordance with Section 2 hereof.
Stockholder intends this proxy to be irrevocable, during the term of this
Agreement, and coupled with an interest and will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy previously granted by Stockholder with
respect to the Voting Shares other than the Proxy. Stockholder shall not
hereafter, unless and until the Termination Time, purport to vote (or execute a
consent with respect to) any of the Voting Shares (other than through this
irrevocable proxy or in accordance with Section 2 hereof) or grant any other
proxy or power of attorney with respect to any of the Voting Shares, deposit any
of the Voting Shares into a voting trust or enter into any agreement (other than
this Agreement), arrangement, or understanding with any person, directly or
indirectly, to vote, grant any proxy, or give instructions with respect to the
voting of any of the Voting Shares. Stockholder shall retain at all times the
right to vote the Voting Shares in Stockholder's sole discretion on all matters
other than those set forth in Section 2 hereof that are presented for a vote to
the stockholders of Company generally.
4. Manner of Voting. The Voting Shares may be voted pursuant to this
Agreement in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
5. No Solicitation. From the date of this Agreement until the Effective
Time (as such date is defined in the Merger Agreement) or the Termination Time
(as hereinafter defined), Stockholder will not, nor will Stockholder permit any
investment banker, attorney, accountant or other advisor or representative of
Stockholder to, directly or indirectly, (i) initiate, solicit or encourage any
inquiries, offers or proposals that constitute, or may reasonably be expected to
lead to an Acquisition Proposal (as such term is defined in the Merger
Agreement), (ii) participate in any discussions or negotiations concerning, or
provide to any person any information or data relating to Company or any
subsidiary of Company for the purpose of making, or take any other action to
facilitate, any Acquisition Proposal or any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal, (iii) agree to, approve or recommend any Acquisition
Proposal or (iv) take any other action materially inconsistent with Company's
obligations and commitments assumed pursuant to Section 6.6 of the Merger
Agreement.
6. No Transfer. From the date of this Agreement until the earlier of
(a) the Effective Time (as defined in the Merger Agreement) and (b) the
Termination Time (as hereinafter defined), Stockholder shall not sell, pledge,
or otherwise transfer, dispose of or encumber any of the Record Shares,
Additional Disposition Shares or New Shares (as hereinafter defined), or any
rights in respect thereof and shall not consent to any sale, pledge or other
transfer, disposition of, or encumbrance of, any Additional Voting Shares, or
any rights in respect thereof; provided, however, that this Section 6 shall not
prohibit (i) the Record Share Encumbrances or (ii) the sale or margin of Shares
as permitted pursuant to, and in accordance with, the terms of that certain
Stockholder Agreement, dated as of even date herewith, by and between Parent,
Company and Xxxx X. Xxxxx, Xx.
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7. Additional Purchases; Option Exercise. If, during the period
commencing on the date of this Agreement and ending on the earlier of (i) the
Effective Time and (ii) the Termination Time, Stockholder purchases or otherwise
acquires any additional shares of Class A Common Stock or any rights in respect
thereof, including, without limitation, pursuant to the exercise of
Stockholder's Options, if any, such shares (the "New Shares") shall be subject
to the terms of this Agreement and for all purposes shall be and constitute a
portion of the Shares.
8. Adjustments to Prevent Dilution. In the event of any change in the
Class A Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, or the exchange of shares, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
9. Waiver of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives any right of appraisal relating to the Merger that
Stockholder may have by virtue of ownership of the Shares.
10. [Intentionally Omitted.]
11. No Litigation. From the date of this Agreement through the earlier
to occur of the Termination Time or the Effective Time, the Parties agree that
the Stockholder Parties (as hereinafter defined) and the Company Controlled
Parties (as hereinafter defined) shall not bring any actions against any Company
Parties (as hereinafter defined) or Stockholder Parties, respectively, other
than with respect to an activity that is unrelated to the Company; provided,
however, that such Parties may still report or make public disclosure of any
violations of Law (as defined in the Merger Agreement).
12. General Release and Covenant Not to Xxx.
(a) Release by Stockholder Parties. EFFECTIVE AS OF THE
EFFECTIVE TIME, STOCKHOLDER, ON BEHALF OF STOCKHOLDER, STOCKHOLDER'S
ATTORNEYS, HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGNS, AND TRUSTS,
PARTNERSHIPS AND OTHER ENTITIES UNDER STOCKHOLDER'S CONTROL (TOGETHER
THE "STOCKHOLDER PARTIES"), HEREBY GENERALLY RELEASES AND FOREVER
DISCHARGES COMPANY AND ITS PREDECESSORS, SUCCESSORS, ASSIGNS,
SUBSIDIARIES AND AFFILIATES AND FAMILY MEMBERS (AS DEFINED BELOW),
OFFICERS (OTHER THAN XXXX XXXXX AND XXXXXX XXXXX), EMPLOYEES, AGENTS,
REPRESENTATIVES, PRINCIPALS AND ATTORNEYS, AND, SUBJECT TO SECTION 14
HEREOF, DIRECTORS, XXXX XXXXX AND XXXXXX XXXXX (TOGETHER THE "COMPANY
PARTIES") FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, SUITS,
DAMAGES, LOSSES, EXPENSES, ATTORNEYS' FEES, OBLIGATIONS OR CAUSES OF
ACTION, KNOWN OR UNKNOWN OF ANY KIND AND EVERY NATURE WHATSOEVER, AND
WHETHER OR NOT ACCRUED OR MATURED (COLLECTIVELY, "CLAIMS"), WHICH ANY
OF THEM MAY HAVE ARISING OUT OF OR RELATING TO ANY OMISSION, ACTS OR
FACTS THAT HAVE OCCURRED UP AND UNTIL AND INCLUDING THE EFFECTIVE TIME,
INCLUDING WITHOUT LIMITATION:
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i. any and all Claims relating to, arising from, or
in connection with the following lawsuits: (a) Hollywood
Casino Corporation v. Xxxx X. Xxxxx v. Xxxxxx X. Xxxxx III,
Xxxxxx X. Xxxxx and Xxxx X. Xxxxx, Cause No. 02-01516, in the
District Court of Dallas County, Texas, 116th Judicial
District; (b) Hollywood Casino Corporation v. Xxxxxx X.
Xxxxxxx, et al., Civil Action No. 3:02CV0325-M, in the United
Stated District Court for the Northern District of Texas,
Dallas Division; and (c) Xxxx X. Xxxxx v. Hollywood Casino
Corporation, a Delaware corporation, C.A. No. 19504, in the
Court of Chancery of the State of Delaware in and for New
Castle County (the "Lawsuits");
ii. any and all Claims relating to, arising from, or
in connection with, the employment of Stockholder by the
Company or the termination of such employment;
iii. any and all Claims relating to, or arising from,
Stockholder's right to purchase, or actual purchase of shares
of stock of Company, including, without limitation, any Claims
for fraud, misrepresentation, breach of fiduciary duty, breach
of duty under applicable state corporate law, and securities
fraud under any state or federal law;
iv. any and all Claims for wrongful discharge of
employment; fraud; misrepresentation; termination in violation
of public policy; discrimination; breach of contract, both
express and implied; breach of a covenant of good faith and
fair dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; breach of fiduciary duty; unfair business
practices; breach of confidentiality provision, defamation;
libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; tortious
interference, theft, embezzlement, and conversion;
v. any and all Claims for violation of any federal,
state or municipal statute, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Family Medical Leave Act, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers
Benefit Protection Act and the Texas Commission on Human
Rights Act;
vi. any and all Claims for violation of the federal,
or any state, constitution;
vii. any and all Claims arising out of any other laws
and regulations relating to employment or employment
discrimination; and
viii. any and all Claims for attorneys' fees,
expenses, and costs other than fees, costs or expenses which
are otherwise indemnifiable under Section 6.8 of the Merger
Agreement.
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"FAMILY MEMBERS" SHALL MEAN, WITH RESPECT TO ANY PARTY THAT IS AN INDIVIDUAL,
THE SPOUSE OF A PARTY, ANY PARENT OF SUCH PARTY, OR ANY LINEAL DESCENDENT OF A
PARENT OF SUCH PARTY (WHETHER NATURAL BORN OR ADOPTED).
NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT IN ANY WAY RELEASE, IMPAIR,
OR LIMIT ANY OBLIGATIONS INCURRED BY OR OWING FROM THE COMPANY PARTIES (1) UNDER
THIS AGREEMENT, (2) UNDER THE MERGER AGREEMENT, INCLUDING, WITHOUT LIMITATION,
SECTION 6.8 THEREOF AND (3) WITH RESPECT TO CLAIMS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 0000 ("XXXX XXXXXX"). FURTHER, THIS RELEASE DOES NOT IN ANY
WAY RELEASE ANY OF COMPANY'S INSURERS FROM COVERING STOCKHOLDER FOR ANY CONDUCT,
ACTS, INJURIES, OR ACTIONS ARISING FROM, IN CONNECTION WITH, OR RELATED TO THE
TIME PERIOD SUCH PERSON WAS EMPLOYED BY OR SERVING AS AN OFFICER OR DIRECTOR OF
COMPANY.
(b) Prosecution by Stockholder and Stockholder Parties.
EFFECTIVE AS OF THE EFFECTIVE TIME, STOCKHOLDER, ON BEHALF OF
STOCKHOLDER AND THE STOCKHOLDER PARTIES, HEREBY COVENANTS FOREVER NOT
TO ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (OR SPONSOR
OR PURPOSELY FACILITATE ANY PERSON IN CONNECTION WITH THE FOREGOING),
ANY COMPLAINT OR LAWSUIT OR ANY LEGAL, EQUITABLE OR ADMINISTRATIVE
PROCEEDING OF ANY NATURE, AGAINST ANY OF THE COMPANY PARTIES IN
CONNECTION WITH ANY MATTER RELEASED IN SECTION 12(a), INCLUDING,
WITHOUT LIMITATION, THE LAWSUITS, AND REPRESENTS AND WARRANTS THAT TO
THE EXTENT WITHIN STOCKHOLDER'S CONTROL, NO OTHER PERSON OR ENTITY HAS
OR WILL INITIATE ANY SUCH PROCEEDING ON BEHALF OF STOCKHOLDER OR ANY
STOCKHOLDER PARTY.
NOTWITHSTANDING THE FOREGOING, THIS COVENANT DOES NOT IN ANY WAY PROHIBIT
STOCKHOLDER OR ANY OF THE STOCKHOLDER PARTIES FROM REPORTING OR MAKING PUBLIC
DISCLOSURE OF ANY VIOLATIONS OF LAW.
(c) Release by Company. EFFECTIVE AS OF THE EFFECTIVE TIME,
COMPANY, ON BEHALF OF ITSELF AND THE COMPANY PARTIES UNDER ITS CONTROL
(THE "COMPANY CONTROLLED PARTIES"), HEREBY GENERALLY RELEASES AND
FOREVER DISCHARGES STOCKHOLDER, THE STOCKHOLDER PARTIES AND THEIR
FAMILY MEMBERS FROM ANY AND ALL CLAIMS, WHICH ANY OF THEM MAY HAVE,
ARISING OUT OF OR RELATING TO ANY OMISSION, ACTS OR FACTS THAT HAVE
OCCURRED UP AND UNTIL AND INCLUDING THE EFFECTIVE TIME, INCLUDING
WITHOUT LIMITATION, THE LAWSUITS.
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NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT IN ANY WAY RELEASE, IMPAIR,
OR LIMIT (i) ANY OBLIGATIONS INCURRED BY OR OWING FROM STOCKHOLDER OR ANY OF THE
STOCKHOLDER PARTIES (1) UNDER THIS AGREEMENT, AND (2) WITH RESPECT TO ADEA
CLAIMS OR (ii) THE RIGHTS OF COMPANY OR ANY OF ITS PREDECESSORS, SUCCESSORS,
ASSIGNS OR SUBSIDIARIES AGAINST STOCKHOLDER OR STOCKHOLDER PARTIES WITH RESPECT
TO ANY CRIMINAL OR FRAUDULENT ACTIVITY OTHER THAN ACTIVITIES THAT ARE THE
SUBJECT OF THE LAWSUITS.
(d) Prosecutions by Company and Company Controlled Parties.
EFFECTIVE AS OF THE EFFECTIVE TIME, COMPANY, ON BEHALF OF ITSELF AND
THE COMPANY CONTROLLED PARTIES, HEREBY COVENANTS FOREVER NOT TO ASSERT,
FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (OR SPONSOR OR PURPOSELY
FACILITATE ANY PERSON IN CONNECTION WITH THE FOREGOING), ANY COMPLAINT
OR LAWSUIT OR ANY LEGAL, EQUITABLE OR ADMINISTRATIVE PROCEEDING OF ANY
NATURE, AGAINST ANY OF THE STOCKHOLDER PARTIES IN CONNECTION WITH ANY
MATTER RELEASED IN SECTION 12(c), INCLUDING, WITHOUT LIMITATION, THE
LAWSUITS, AND REPRESENTS AND WARRANTS THAT, TO THE EXTENT WITHIN ITS
CONTROL, NO OTHER PERSON OR ENTITY HAS INITIATED OR WILL INITIATE ANY
SUCH PROCEEDING ON ITS OR THEIR BEHALF.
NOTWITHSTANDING THE FOREGOING, THIS COVENANT DOES NOT IN ANY WAY PROHIBIT THE
COMPANY OR ANY OF THE COMPANY PARTIES FROM REPORTING OR MAKING PUBLIC DISCLOSURE
OF ANY VIOLATIONS OF LAW.
13. [Intentionally Omitted.]
14. Third-Party Beneficiary Rights. Subject to the following sentence,
no provision of this Agreement is intended to nor shall it be interpreted to
provide or create any third-party beneficiary rights or any other rights of any
kind in any other person or entity who is not a Party. The provisions of
Sections 11 and 12 are intended to and shall be interpreted to provide and
create third party beneficiary rights for each director, officer, employee, and
agent of the Company, provided that in the case of each director, Xxxx Xxxxx and
Xxxxxx Xxxxx, such person must, deliver to Stockholder a fully executed
agreement within five business days of the date of this Agreement containing
provisions, where reasonably applicable, identical to the provisions of Section
12 (with respect to the release of the Stockholder Parties).
15. Further Assurances. Each Party shall do and perform or cause to be
done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, or documents as
any other Party shall reasonably request from time to time in order to carry out
the intent and purposes of this Agreement. No Party shall voluntarily undertake
any course of action inconsistent with satisfaction of the requirements
applicable to such Party as set forth in this Agreement, and each Party shall
promptly do all acts and take all measures as may be appropriate or necessary to
enable such Party to perform, as early as practicable, the obligations required
to be performed by such Party under this Agreement. Without limiting the
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foregoing, if requested by Company or Parent, Stockholder will obtain a written
acknowledgement from any entity or person that Stockholder purports to act on
behalf of acknowledging that such Stockholder has the authority to execute this
Agreement on such person or entity's behalf and to so bind such person or
entity.
16. Injunctive Relief. The Parties acknowledge that it is impossible to
measure in money the damages that will accrue to one or more of them by reason
of the failure of either of them to abide by the provisions of this Agreement,
that every such provision is material, and that in the event of any such
failure, the other Party will not have an adequate remedy at law or damages.
Therefore, if any Party shall institute any action or proceeding to enforce the
provisions of this Agreement, in addition to any other relief, the court in such
action or proceeding may grant injunctive relief against any Party found to be
in breach or violation of this Agreement, as well as or in addition to any
remedies at law or damages, and such Party waives the claim or defense in any
such action or proceeding that the Party bringing such action has an adequate
remedy at law, and such Party shall not argue or assert in any such action or
proceeding the claim or defense that such remedy at law exists. No Party shall
seek and each Party shall waive any requirement for, the securing or posting of
a bond in connection with the other Party seeking or obtaining such equitable
relief.
17. Court Modification. Should any portion of this Agreement be
declared by a court of competent jurisdiction to be unreasonable, unenforceable,
or void for any reason or reasons, the involved court shall modify the
applicable provision(s) of this Agreement so as to be reasonable or as is
otherwise necessary to make this Agreement enforceable and valid and to protect
the interests of the Parties intended to be protected by this Agreement to the
maximum extent possible.
18. Facsimile Transmission and Counterparts. This Agreement may be
executed by facsimile transmission and in one or more counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same Agreement.
19. Notices. All notices, requests, demands, and other communications
under this Agreement ("Notices") shall be in writing and shall be delivered (i)
personally, (ii) by certified mail, return receipt requested, postage prepaid,
(iii) by overnight courier or (iv) by facsimile transmission properly addressed
as follows:
If to Parent to:
Penn National Gaming, Inc.
000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Chief Executive Officer
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with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
If to Company to:
Hollywood Casino Corporation
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
and if to Stockholder, at the address specified in on the signature page to this
Agreement or, in either case, to such other address or addresses as a Party to
this Agreement may indicate to the other Party in the manner provided for in
this Paragraph 19. Notices given by mail, by overnight courier and by personal
delivery shall be deemed effective and complete upon delivery and notices by
facsimile transmission shall be deemed effective upon receipt.
20. Effective Date; Term. This Agreement shall become effective upon
(i) its execution and delivery by all Parties and (ii) the execution and
delivery of each of the Other Stockholder Agreements by the parties thereto;
provided, however, that Section 12 of this Agreement shall not become effective
until the Effective Time. This Agreement shall continue in full force and effect
until the first to occur of (A) the written agreement of all the Parties to
terminate this Agreement and (B) the termination of the Merger Agreement in
accordance with its terms (the first to occur of (A) and (B) the "Termination
Time").
21. [Intentionally Omitted.]
22. Gaming Approvals; Cooperation. Company shall (i) promptly file all
required applications to obtain the approvals from all applicable Gaming
Authorities necessary for Stockholder to grant the proxy set forth in Section 3,
(ii) shall request an accelerated review from such Gaming Authorities in
connection with such filings, and (iii) shall otherwise use its reasonable best
efforts to obtain such approvals. Each of the Parties shall use such Party's
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reasonable best efforts to cooperate with Company and all applicable Gaming
Authorities in making such filings and obtaining such approvals.
23. OTHER AGREEMENTS.
(a) This Agreement supersedes all prior agreements or
understandings of the Parties on the subject matter of this Agreement.
There are no representations, warranties, or agreements, whether
express or implied, or oral or written, with respect to the subject
matter of this Agreement, except as set forth in this Agreement. This
Agreement (i) shall not be modified by any oral agreement, either
express or implied, and all amendments or modifications of this
Agreement shall be in writing and be signed by all of the Parties, and
(ii) shall be binding on and shall inure to the benefit of the Parties
and their respective heirs, legal representatives, successors and
assigns.
(b) The paragraph headings in this Agreement are for the
purpose of convenience only and shall not limit or otherwise affect any
of the terms of this Agreement.
(c) Should any Party be in default under or breach of any of
the covenants or agreements contained in this Agreement, or in the
event a dispute shall arise as to the meaning of any term of this
Agreement, the defaulting or nonprevailing Party shall pay all costs
and expenses, including reasonable attorneys' fees, of the other Party
that may arise or accrue from enforcing this Agreement, securing an
interpretation of any provision of this Agreement, or in pursuing any
remedy provided by law whether such remedy is pursued or interpretation
is sought by the filing of a lawsuit, an appeal, or otherwise.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, which
internal laws exclude any provision or interpretation of such laws that
would call for, or permit, the application of the laws of any other
state or jurisdiction, and any dispute arising therefrom and the
remedies available shall be determined solely in accordance with such
internal laws.
(e) Where the context requires, the singular shall include the
plural, the plural shall include the singular, and any gender shall
include all other genders.
(f) Stockholder certifies that Stockholder has read the terms
of this Agreement, that Stockholder has been informed by this document
that Stockholder should discuss this Agreement with the attorney of
Stockholder's own choice, that Stockholder has had an opportunity to do
so and that Stockholder understands this Agreement's terms and effects.
(g) The Parties have jointly participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any provisions of this Agreement.
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IN WITNESS WHEREOF, each of the Parties has executed this Agreement on
or as of the date of this Agreement.
PARENT:
PENN NATIONAL GAMING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, Secretary
and Treasurer
COMPANY:
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Chief Executive Officer
STOCKHOLDER:
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Address:
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Telephone:
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Facsimile:
-------------------------------------
With a copy to:
Xxxxxx, Lidji & Werbner
Attn: Xxxxx X. Xxxxx
4400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
SCHEDULE A
OTHER STOCKHOLDERS EXECUTING STOCKHOLDER AGREEMENTS
Xxxxx X. Xxxxx
Xxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxx XxXxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx III
Xxxxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxx, Xx.
SCHEDULE B
SHARES HELD OF RECORD:
Stockholder holds of record 521,616 shares of Class A Common Stock, which shares
are subject to a voting trust arrangement giving Xxxx X. Xxxxx voting power.
OPTIONS:
Total of 7,500 options, of which options to acquire 4,500 shares of Class A
Common Stock are vested, and 3,000 additional shares vest in 1,500 share
increments on December 1 of 2002 and 2003. The right to acquire these 7,500
shares will expire on April 5, 2009. All of such options, which have not been
previously exercised, will vest at the Effective Time of the Merger.
ADDITIONAL VOTING SHARES:
None
ADDITIONAL DISPOSITION SHARES:
None
RECORD SHARE ENCUMBRANCES:
Stockholder has a margin loan for $75,000 secured by approximately 501,000
shares of Class A Common Stock in an account and a margin loan for $15,000
secured by approximately 15,000 shares of Class A Common Stock in an account.
