Exhibit 10.13
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EXECUTION COPY
AMENDMENT
TO
RIGHTS AGREEMENT
This Amendment (this "Amendment") is made and entered into as of
August 7, 2002, by and between Hollywood Casino Corporation (the "Company"), a
Delaware corporation, and Continental Stock Transfer & Trust Company ("Agent").
RECITALS
WHEREAS, the Company and Agent are parties to that certain Rights
Agreement, dated as of May 7, 1993 (the "Agreement");
WHEREAS, as of the date of this Amendment the Distribution Date (as
defined in the Agreement) has not occurred;
WHEREAS, Section 27 of the Agreement provides that the Agreement may
be amended at the direction of the Company without the approval of the
stockholders of the Company at any time prior to the Distribution Date;
WHEREAS, the Company, Penn National Gaming, Inc., a Pennsylvania
corporation, and P Acquisition Corp., a Delaware corporation ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger pursuant to which Merger
Sub will merge with and into the Company, which agreement has been approved by
the Board of Directors of the Company; and
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Agreement as set forth herein is necessary and desirable in
connection with the foregoing.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Agent hereby agree as follows:
1. DEFINED TERMS. All capitalized terms used, but not defined, in
this Amendment shall have the meanings given to such terms in the Agreement.
2. ACQUISITION GROUP. The following subsection (d) is hereby added to
Section 3 of the Agreement in its appropriate position:
(d) Notwithstanding any other provision of this Agreement
to the contrary, (i) no Distribution Date, Stock Acquisition Date or
Triggering Event shall be deemed to have occurred, (ii) neither Penn
National Gaming, Inc. nor any of its Affiliates or Associates
(collectively, the "Acquisition Group") shall be deemed to be or to
have become an Acquiring Person and (iii) no holder of Rights shall
be entitled to any rights or benefits pursuant to Sections 3, 7, 11
or 13 or any other provision of this Agreement, in each case by
reason of (w) the approval, execution, delivery or performance of
that certain Agreement and Plan of Merger, dated as of August 7,
2002, by and among the Company, Penn National Gaming, Inc. and P
Acquisition Corp. (the "Merger Agreement"), by the parties thereto,
(x) the approval, execution, delivery or performance of those certain
Stockholder Agreements, each dated as of August 7, 2002, by and among
the Company, Penn National Gaming, Inc. and the stockholders of the
Company party thereto, by the parties thereto, (y) the approval of
the Merger Agreement by the stockholders of the parties thereto or
(z) the consummation of the transactions contemplated by the Merger
Agreement; provided, however, that in the event that one or more
members of the Acquisition Group collectively become the Beneficial
Owner of 20% or more of the shares of Common Stock then outstanding
in any manner other than pursuant to clauses (w), (x), (y) or (z) of
this subsection (d), the provisions of this subsection (d) (other
than this proviso) shall terminate.
3. EXPIRATION DATE. Section 7(a) of the Agreement shall be deleted
and replaced in its entirety with the following:
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with
respect to the total number of one one-hundredths of a share (or
other securities, cash or other assets, as the case may be) as to
which such surrendered Rights are then exercisable, at or prior to
the earliest of (i) the Final Expiration Date, (ii) the time at which
the Rights are redeemed as provided in Section 23 hereof, (iii) the
expiration of the Rights pursuant to Section 13(d) or (iv)
immediately prior to the Effective Time (as defined in the Merger
Agreement) (the earliest of (i), (ii), (iii) and (iv) being referred
to herein as the "Expiration Date").
4. ENTIRE AGREEMENT. This Amendment and the Agreement shall
constitute the entire understanding and agreement between the Company and the
Agent with regard to the subjects hereof and thereof.
5. NO OTHER MODIFICATION. Except as set forth in this Amendment, the
terms and conditions of the Agreement shall remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed in multiple
counterparts or originals, and by the different parties hereto in separate
counterparts or multiple originals, each of which when executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first written above.
HOLLYWOOD CASINO CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel and Secretary
Attest:
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer, Treasurer
and Assistant Secretary
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Assistant Secretary
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