STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
this 26th day of December 2007, by and between PNG Holdings LLC, a limited
liability company (the "Buyer"), and the Sellers listed on Schedule I hereto
(each, a "Seller" and collectively, the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers own shares of common stock, par value $0.01 per share,
of Penn National Gaming, Inc., a Pennsylvania corporation (the "Company");
WHEREAS, as set forth in the resolutions of the Board of Directors of the
Company (the "Board") attached hereto as Exhibit A, the Board has approved a
waiver of the standstill provisions of that certain letter agreement, dated
April 23, 2007, between the Company and Fortress Investment Group, LLC, an
affiliate of the Buyer, with respect to the transactions contemplated by this
Agreement;
WHEREAS, the Buyer desires to purchase from each Seller, and each Seller
desires to sell to the Buyer, that number of shares of common stock of the
Company set forth opposite such Seller's name on Schedule I hereto (the
"Securities"), upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual terms, conditions and other
agreements set forth herein, the parties hereto hereby agree as follows:
ARTICLE I
SALE AND PURCHASE
Section 1.1. Subject to the terms and conditions set forth in this
Agreement and in reliance upon each Seller's and the Buyer's representations set
forth below, on the Closing Date (as defined below) each Seller shall sell,
assign, transfer, convey and deliver the Securities to the Buyer, and the Buyer
shall purchase the Securities from each Seller, for an aggregate amount in cash
set forth opposite each Seller's name on Schedule I hereto (the "Purchase
Price"). Notwithstanding anything in this Agreement to the contrary, the Buyer
shall not be obligated to purchase any of Seller's Securities at the Closing (as
defined below) unless the Buyer purchases all of the Securities from each Seller
at the Closing.
Section 1.2. The closing of such sale and purchase (the "Closing") shall
take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, as of the date hereof, or at such other location,
time or date as the Sellers and the Buyer shall mutually select, but in no event
later than December 31, 2007 (the "Closing Date"). At the Closing, each Seller
shall deliver to the Buyer or its designees the Securities to be sold by such
Seller. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company. In full consideration and exchange for the Securities
to be sold by such Seller, the Buyer shall thereupon pay to each Seller the
applicable Purchase Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Each Seller represents and warrants to the Buyer that:
Section 2.1. The Seller has valid and marketable title to the Securities
set forth opposite such Seller's name on Schedule I hereto, and the sale and
transfer of the Securities by the Seller to the Buyer hereunder will vest title
to the Securities in the Buyer.
Section 2.2. The Securities are owned by the Seller free and clear of any
security interest, lien, claim or other encumbrance or any restriction on
transfer, except restrictions on transfer arising pursuant to the Securities Act
of 1933, as amended, ("Encumbrances") and will be transferred to the Buyer free
of any Encumbrances.
Section 2.3. The Seller has full power and legal capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
Section 2.4. No consent, approval, authorization or order of any court,
governmental agency or body having jurisdiction over the Seller is required for
the execution, delivery or performance of the Seller of its obligations
hereunder, including, without limitation, the sale of the Securities.
Section 2.5. Each Seller is a sophisticated investor and has the
appropriate knowledge and experience in financial and business matters to
evaluate, negotiate and implement the sale of the Securities. Each Seller has
been afforded the opportunity to consult with such financial, investment, legal
and tax experts as such Seller deems appropriate in connection with the sale of
the Securities. Each Seller has adequate information with respect to the
business, financial affairs and prospects of the Company to evaluate the merits
and risks of the sale of the Securities. Each Seller acknowledges that Buyer and
its affiliates possess or have access to or the benefit of material non-public
information regarding the Company and its subsidiaries ("Confidential
Information") that may not have been communicated to such Seller, and each
Seller further acknowledges that it is proceeding with the transactions
contemplated hereby knowingly and voluntarily without access to or the benefit
of such Confidential Information. Each Seller hereby waives any and all claims
he may have or may hereafter acquire against Buyer or its affiliates or any of
their respective partners, members, officers, directors, employees, agents or
representatives relating to any failure by any of them to disclose Confidential
Information in connection with the sale of the Securities contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to each Seller as follows:
Section 3.1. The Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Section 3.2. The Buyer has full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder in accordance with its
terms.
Section 3.3. The Buyer has taken all action necessary for the
authorization, execution, delivery, and performance of this Agreement and its
obligations hereunder, and, upon execution and delivery by the Sellers and the
Buyer, this Agreement shall constitute the valid and binding obligations of the
Buyer, enforceable against the Buyer in accordance with its terms, except that
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and general principles of equity.
Section 3.4. No consent, approval, authorization or order of any court,
governmental agency or body having jurisdiction over the Buyer is required for
the execution, delivery or performance of the Buyer of its obligations
hereunder, including, without limitation, the purchase of the Securities.
Section 3.5. The Buyer is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D of the Securities Act of 1933, as amended, and is
acquiring the Securities solely for its own account for investment and not with
a view towards the resale, transfer or distribution thereof, nor with any
present intention of distributing the Securities.
Section 3.6. Buyer has adequate information with respect to the business,
financial affairs and prospects of the Company to evaluate the merits and risks
of the purchase of the Securities. Buyer acknowledges that each Seller may
possess or have access to or the benefit of Confidential Information that may
not have been communicated to Buyer, and Buyer further acknowledges that it is
proceeding with the transactions contemplated hereby knowingly and voluntarily
without access to or the benefit of such Confidential Information. Buyer hereby
waives any and all claims he may have or may hereafter acquire against each
Seller relating to any failure by such Seller to disclose Confidential
Information in connection with the sale of the Securities contemplated hereby.
ARTICLE IV
COVENANTS
Section 4.1. Further Assurances.
Upon the request of the Buyer at any time after the Closing Date, each
Seller shall execute and deliver such further instruments of assignment,
transfer, conveyance, endorsement, direction or authorization and other
documents as the Buyer may reasonably request in order to perfect title of the
Buyer and his successors and assigns to the Securities or otherwise to
effectuate the purposes of this Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1. Notices.
(a) All communications under this Agreement shall be in writing and shall
be delivered by hand or facsimile or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
(1) if to the Buyer, at c/o Fortress Investment Group LLC, 1345 Avenue
of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (facsimile: (212)
798-6070), Attention: Xxxxx Xxxxxxx, or at such other address or facsimile
number as the Buyer may have furnished the Sellers in writing with a copy
to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(facsimile: (000) 000-0000), Attention: Xxxx X. Xxxxxxxxxx, Esq.; and
(2) if to a Seller, at such address set forth below such Seller's name
on Schedule I hereto, or at such other address or facsimile number as such
Seller may have furnished the Buyer in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered by
hand or facsimile, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
Section 5.2. Expenses.
Each party shall bear its own expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement.
Section 5.3. Entire Agreement; Amendment and Waiver.
This Agreement constitutes the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements or understandings with respect to the subject matter hereof among
such parties. This Agreement may be amended, and the observance of any term of
this Agreement may be waived, with (and only with) the written consent of the
Sellers and the Buyer.
Section 5.4. Severability.
In the event that any part or parts of this Agreement shall be held illegal
or unenforceable by any court or administrative body of competent jurisdiction,
such determination shall not affect the remaining provisions of this Agreement
which shall remain in full force and effect.
Section 5.5. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall be considered one
and the same agreement. This Agreement may be executed by facsimile signatures.
Section 5.6. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof.
Section 5.7. Paragraph and Section Headings
The headings of the sections and subsections of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
the date first above written.
BUYER:
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PNG HOLDINGS LLC
By : FIF V Voteco LLC, its managing member
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:
SELLERS:
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/s/ Xxx XxXxxxxx
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Xxx XxXxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
