AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PENN NATIONAL GAMING, INC.
(Exact Name of Registrant as Specified in Its Charter)
PENNSYLVANIA 23-2234473
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ADDITIONAL SUBSIDIARY GUARANTOR REGISTRANTS LISTED ON THE FOLLOWING PAGE
825 BERKSHIRE BOULEVARD, SUITE 200
WYOMISSING, PENNSYLVANIA 19610
610-373-2400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
PETER M. CARLINO
CHIEF EXECUTIVE OFFICER
PENN NATIONAL GAMING, INC.
825 BERKSHIRE BOULEVARD, SUITE 200
WYOMISSING, PENNSYLVANIA 19610
610-373-2400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
RICHARD A. SILFEN, ESQUIRE
MORGAN, LEWIS & BOCKIUS LLP
1701 MARKET STREET
PHILADELPHIA, PA 19103
215-963-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1)(2) OFFERING PRICE(2)(3) REGISTRATION FEE
Common stock, par value $.01 per share......
Preferred Stock, par value $.01 per share...
Debt Securities.............................
Guarantees by Additional Registrants'
of Debt Securities(4).....................
Total(5)................................ $300,000,000 100% $300,000,000 $75,000
(1) The proposed maximum offering price per unit will be determined from time to
time by the registrants in connection with the issuance by the registrants
of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933, as amended.
The aggregate public offering price of all securities registered hereunder
will not exceed $300,000,000 or the equivalent thereof on the date of
issuance in one or more foreign currencies, foreign currency units or
composite currencies. Such amount represents the issue price rather than the
principal amount of any debt securities issued at an original issue
discount.
(3) Exclusive of accrued interest, distributions and dividends, if any.
(4) In accordance with Rule 457(n), no separate fee for the registration of the
guarantees is required.
(5) This registration statement also covers such indeterminable amount of
securities as may be issued upon conversion of, or in exchange for, the
securities registered hereunder.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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ADDITIONAL REGISTRANTS:
ADDRESS, INCLUDING ZIP CODE, AND
STATE OR OTHER JURISDICTION TELEPHONE NUMBER, INCLUDING
EXACT NAME OF REGISTRANT OF INCORPORATION OR I.R.S. EMPLOYER AREA CODE, OF REGISTRANT'S
AS SPECIFIED IN ITS CHARTER ORGANIZATION IDENTIFICATION NO. PRINCIPAL EXECUTIVE OFFICES
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BACKSIDE, INC. Pennsylvania 23-271347 1280 Highway 315
Wilkes-Barre, PA 18702
717-825-6681
BSL, INC. Mississippi 62-1807073 825 Berkshire Blvd., Suite 200
Wyomissing, PA 19610
610-373-2400
BTN, INC. Mississippi 62-1807074 825 Berkshire Blvd., Suite 200
Wyomissing, PA 19610
610-373-2400
CHC CASINOS CORP. Florida 65-0681528 3250 Mary Street, Suite 500
Miami, FL 33133
305-445-4290
CRC HOLDINGS, INC. Florida 65-0011722 3250 Mary Street, Suite 500
Miami, FL 33133
305-445-4290
THE DOWNS RACING, INC. Pennsylvania 23-2924948 1280 Highway 315
Wilkes-Barre, PA 18702
717-825-6681
EBETUSA.COM, INC. Delaware 51-0393062 300 Delaware Avenue
9th Floor
Wilmington, DE 19801
302-552-3137
LOUISIANA CASINO CRUISES, Louisiana 72-1196619 1717 River Road North
INC. Baton Rouge, LA 70802
225-709-7777
MILL CREEK LAND, INC. Pennsylvania 23-2312561 1280 Highway 315
Wilkes-Barre, PA 18702
717-825-6681
MOUNTAINVIEW THOROUGHBRED Pennsylvania 25-1196820 R.D. #1 (P.O. Box 32)
RACING ASSOCIATION Exit 28 off Interstate 81
Grantville, PA 17551
717-469-2910
NORTHEAST CONCESSIONS, INC. Pennsylvania 23-2493823 1280 Highway 315
Wilkes-Barre, PA 18702
717-825-6681
PENN NATIONAL GAMING OF WEST West Virginia 23-2839600 825 Berkshire Blvd., Suite 200
VIRGINIA, INC. Wyomissing, PA 19610
610-373-2400
PENN NATIONAL GSFR, INC. Delaware 51-0392451 300 Delaware Avenue
9th Floor
Wilmington, DE 19801
302-552-3137
ADDRESS, INCLUDING ZIP CODE, AND
STATE OR OTHER JURISDICTION TELEPHONE NUMBER, INCLUDING
EXACT NAME OF REGISTRANT OF INCORPORATION OR I.R.S. EMPLOYER AREA CODE, OF REGISTRANT'S
AS SPECIFIED IN ITS CHARTER ORGANIZATION IDENTIFICATION NO. PRINCIPAL EXECUTIVE OFFICES
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PENN NATIONAL HOLDING Delaware 51-0372406 300 Delaware Avenue
COMPANY 9th Floor
Wilmington, DE 19801
302-552-3137
PENN NATIONAL SPEEDWAY, INC. Pennsylvania 25-1759895 R.D. #1 (P.O. Box 32)
Exit 28 off Interstate 81
Grantville, PA 17551
717-469-2910
PENNSYLVANIA NATIONAL TURF Pennsylvania 23-2346492 R.D. #1 (P.O. Box 32)
CLUB, INC. Exit 28 off Interstate 81
Grantville, PA 17551
717-469-2910
PNGI CHARLES TOWN FOOD & West Virginia 034-05460-001(WV ) Flowing Springs Road
BEVERAGE LIMITED LIABILITY P.O. Box 551
COMPANY Charles Town, WV 25414
304-725-7001
PNGI CHARLES TOWN GAMING West Virginia 23-2839601 Flowing Springs Road
LIMITED LIABILITY COMPANY P.O. Box 551
Charles Town, WV 25414
304-725-7001
PNGI POCONO, INC. Delaware 52-2058610 300 Delaware Avenue
9th Floor
Wilmington, DE 19801
302-552-3137
STERLING AVIATION INC. Delaware 23-2818588 300 Delaware Avenue
9th Floor
Wilmington, DE 19801
302-552-3137
TENNESSEE DOWNS, INC. Tennessee 62-1711858 825 Berkshire Blvd., Suite 200
Wyomissing, PA 19610
610-373-2400
WILKES BARRE DOWNS, INC. Pennsylvania Applied for. 1280 Highway 315
Wilkes-Barre, PA 18702
717-825-6681
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED , 2001
PROSPECTUS
$300,000,000
[LOGO]
PENN NATIONAL GAMING, INC.
COMMON STOCK, PREFERRED STOCK AND
DEBT SECURITIES
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We may use this prospectus to offer and sell securities from time to time.
The types of securities we may sell include:
- common stock;
- preferred stock; and
- debt securities.
Certain of our shareholders also may offer and sell common stock under this
prospectus.
We will provide the specific terms of these securities in supplements to
this prospectus prepared in connection with each offering. The securities
offered will contain other significant terms and conditions. Please read this
prospectus and the applicable prospectus supplement carefully before you invest.
Our common stock trades on The Nasdaq National Market under the symbol
"PENN." We have not yet determined whether any of the other securities offered
hereby will be listed on any exchange or over-the-counter market. If we decide
to seek listing of any such securities, a prospectus supplement relating thereto
will disclose such exchange or market.
INVESTING IN THESE SECURITIES INVOLVES RISKS. YOU SHOULD CAREFULLY REVIEW
THE INFORMATION THAT WILL BE CONTAINED IN THE PROSPECTUS SUPPLEMENT UNDER THE
HEADING "RISK FACTORS."
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THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY, NOR HAVE
THEY DETERMINED IF THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 2001.
TABLE OF CONTENTS
PAGE
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About This Prospectus....................................... i
Where You Can Find More Information......................... ii
Disclosure Regarding Forward-Looking Statements............. iii
The Company................................................. 1
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 3
Description of Capital Stock................................ 4
Description of Debt Securities.............................. 9
Selling Shareholders........................................ 17
Plan of Distribution........................................ 18
Legal Matters............................................... 19
Experts..................................................... 19
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may, from time to time over approximately the next two
years, sell any combination of the securities described in this prospectus in
one or more offerings up to a total dollar amount of $300,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement also may add, update or change information contained in
this prospectus. You should read this prospectus and the applicable prospectus
supplement together with the additional information described below under the
heading "Where You Can Find More Information."
The registration statement that contains this prospectus (including the
exhibits) contains additional information about us and the securities offered by
this prospectus. Specifically, we have filed certain legal documents that
control the terms of the securities offered by this prospectus as exhibits to
the registration statement. We will file certain other legal documents that
control the terms of the securities offered by this prospectus as exhibits to
reports we file with the SEC. That registration statement and the other reports
can be read at the SEC web site or at the SEC offices mentioned under the
heading "Where You Can Find More Information."
You should rely only upon the information contained in, or incorporated
into, this document. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume the information appearing in this document is accurate only as of
the date on the front cover of this document. Our business, financial condition,
results of operations and prospects may have changed since that date.
i
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith we file reports
and other information. Such reports and other information may be inspected and
copied at the public reference rooms of the Securities and Exchange Commission
located at 450 Fifth Street, N.W., Washington, D.C. 20549 and regional offices
in New York, New York and Chicago, Illinois. Copies of such material can be
obtained from the Commission by mail at prescribed rates. Please call the
Commission at 1-800-SEC-0330 (1-800-732-0330) for further information on the
public reference rooms. In addition, the Commission maintains a website
(http://www.sec.gov) that contains such reports, proxy statements and other
information that we have filed. Information may be obtained from us at the
address specified below.
We have "incorporated by reference" into this prospectus certain information
that we file with the Commission. This means that we can disclose important
business, financial and other information in this prospectus by referring you to
the documents containing this information. All information incorporated by
reference is part of this prospectus, unless and until that information is
updated and superseded by the information contained in this prospectus or any
information filed with the Commission and incorporated later. Any information
that we subsequently file with the Securities and Exchange Commission that is
incorporated by reference will automatically update and supersede any previous
information that is part of this prospectus.
We incorporate by reference our documents listed below and any future
filings we make with the Securities and Exchange Commission under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act until the time that we sell all
of the securities offered by this prospectus:
- Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
- Current Reports on Form 8-K filed on May 7, 2001 and June 8, 2001;
- The description of our common stock included in our registration statement
on Form 8-A as filed on May 26, 1994; and
- The description of our preferred share purchase rights included in our
registration statement on Form 8-A as filed on March 16, 1999.
We will provide without charge to each person to whom a copy of this
prospectus is delivered upon the written or oral request of such person, a copy
of any or all of the documents incorporated by reference (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the information that this prospectus incorporates). Requests should be
directed to:
Penn National Gaming, Inc.
828 Berkshire Boulevard, Suite 200
Wyomissing, PA 19610
Attention: Robert S. Ippolito
Telephone (610) 373-2400
ii
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents that are incorporated by reference herein,
include "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Exchange Act,
regarding, among other things, our business strategy, our prospects and our
financial position. These statements can be identified by the use of
forward-looking terminology such as "believes," "estimates," "expects,"
"intends," "may," "will," "should," or "anticipates" or the negative or other
variation of these or similar words, or by discussions of strategy or risks and
uncertainties. Specifically, forward-looking statements may include, among
others, statements concerning:
- projections of future results of operations or financial condition;
- our expectations for our properties and the facility that we manage in
Canada;
- the timing, cost and expected impact on our results of operations of our
planned capital expenditures;
- the expected effect of regulatory changes that we are pursuing; and
- expectations of the continued availability of capital resources.
Although we believe that the expectations reflected in such forward-looking
statements are reasonable, they are inherently subject to risks, uncertainties
and assumptions about us and our subsidiaries and, accordingly, we cannot assure
you that such expectations will prove to be correct. Important factors that
could cause actual results to differ materially from the forward-looking
statements include, without limitation, risks related to the following:
- our ability to fully integrate the full-scale casino operations of the
Mississippi and Louisiana properties and the managed Canadian facility
into our business;
- capital expansions at our gaming and pari-mutuel facilities;
- the activities of our competitors;
- our ability to maintain regulatory approvals for our existing businesses
and to receive regulatory approvals for our new businesses;
- our dependence on key personnel;
- the maintenance of agreements with our horsemen and pari-mutuel clerks;
- other risks and uncertainties described from time to time in our filings
with the Securities and Exchange Commission;
- the risk factors or uncertainties listed herein or listed from time to
time in prospectus supplements or any document incorporated by reference
herein or therein; and
- other risks and uncertainties that have not been identified at this time.
All subsequent written and oral forward-looking statements attributable to
us or persons acting on our behalf are expressly qualified in their entirety by
the cautionary statements included in this document. We undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result
of new information, future events or otherwise. In light of these risks,
uncertainties and assumptions, the forward-looking events discussed in this
document may not occur.
iii
THE COMPANY
We are a diversified gaming and pari-mutuel wagering company with operations
in West Virginia, Mississippi, Louisiana, Pennsylvania and Ontario, Canada. On a
pro forma basis reflecting our Mississippi and CRC acquisitions completed in
2000 and 2001, respectively, our revenues and adjusted EBITDA would have been
$496.1 million and $112.9 million, respectively, for the year ended
December 31, 2000, and $133.3 million and $31.2 million, respectively, for the
three months ended March 31, 2001.
The following table sets forth certain features of our owned or leased
properties and our managed facility:
GAMING
SQUARE GAMING TABLE
PROPERTY LOCATION TYPE OF FACILITY FOOTAGE MACHINES GAMES
- -------- ------------------ --------------------------- -------- -------- --------
OWNED OR LEASED:
Charles Town Entertainment Charles Town, WV Land-based gaming/ 58,000 1,974 --
Complex Thoroughbred racing
Casino Magic Bay St. Louis Bay St. Louis, MS Dockside gaming 39,500 1,158 38
Boomtown Biloxi Biloxi, MS Dockside gaming 33,600 1,060 27
Casino Rouge Baton Rouge, LA Cruising riverboat 28,000 980 42
Penn National Race Course Harrisburg, PA(1) Thoroughbred racing -- -- --
Pocono Downs Wilkes-Barre, Harness racing -- -- --
PA(1)
------- ----- ---
TOTALS 159,100 5,172 107
======= ===== ===
OPERATED:
Casino Rama Orillia, Ontario Land-based gaming 75,000 2,202 122
- --------------------------
(1) In addition to our racetracks, Penn National Race Course and Pocono Downs
have six and five off-track wagering facilities, respectively, located
throughout Pennsylvania.
Our Charles Town Entertainment Complex in Charles Town, West Virginia
features 1,974 gaming machines, a thoroughbred racetrack, simulcast wagering,
entertainment and dining. The facility is located within easy driving distance
of Baltimore, Maryland and Washington, D.C. and is the leading gaming property
serving those areas. There is a total population of approximately 3.1 million
persons within a 50-mile radius, and approximately 10.0 million persons within a
100-mile radius of the Charles Town Entertainment Complex, of which
approximately 7.2 million persons are over the age of 20. We have experienced
strong growth at the facility and have increased the number of gaming machines
from 400 machines in September 1997 to 1,974 machines as of December 31, 2000.
We recently expanded the gaming area to nearly 60,000 square feet and opened a
150-seat restaurant and bar. In addition, since receiving regulatory approval
permitting the operation of reel-spinning, coin-out machines in April 1999, we
have increased the number of reel-spinning machines relative to the number of
paper ticket video lottery terminals, or VLTs. As a result of these initiatives,
our monthly gaming revenues at Charles Town have grown from approximately
$9.4 million in May 2000 to approximately $13.3 million in May 2001.
Our business strategy is focused on exploiting the higher margins and more
stable cash flows associated with gaming operations compared to pari-mutuel
operations. As part of this strategy, on August 8, 2000, we completed our
acquisition of the Casino Magic Bay St. Louis casino and the
1
Boomtown Biloxi casino from Pinnacle Entertainment, Inc. for an aggregate
purchase price of approximately $201.3 million. Both properties operate in the
Gulf Coast gaming market and are within easy driving distance of New Orleans,
Louisiana, Mobile, Alabama and other points in the Southeast. Casino Magic Bay
St. Louis in Bay St. Louis, Mississippi offers approximately 39,500 square feet
of gaming space, with approximately 1,158 slot machines and 38 table games, a
201-room hotel, an 1,800 seat arena, a recreational vehicle park and an 18-hole
Arnold Palmer-designed championship golf course. Boomtown Biloxi in Biloxi,
Mississippi, offers approximately 33,600 square feet of gaming space, with 1,060
slot machines, 27 table games and other gaming amenities including restaurants
and a 20,000 square foot entertainment center.
On April 27, 2001, we completed the acquisition by merger of CRC
Holdings, Inc., and the minority interest in Louisiana Casino Cruises, Inc.,
which we refer to as LCCI, not owned by CRC prior to our acquisition, for
approximately $181.3 million, including amounts required to repay existing debt.
Immediately prior to the closing, CRC divested itself of all of its non-gaming
assets. LCCI is the owner of Casino Rouge, the leading riverboat gaming facility
in Baton Rouge, Louisiana. Casino Rouge features a four-story riverboat casino
with approximately 28,000 square feet of gaming space, 980 gaming machines and
42 table games. In addition to the Casino Rouge property, a wholly owned
subsidiary of CRC operates Casino Rama, located on the lands of the Mnjikaning,
on behalf of the Ontario Lottery and Gaming Corporation, an agency of the
Province of Ontario. Casino Rama is a casino and full-service entertainment
facility located approximately 90 miles north of Toronto, Canada, with
approximately 75,000 square feet of gaming space, 2,202 gaming machines and 122
table games.
In addition to our gaming facilities, we own and operate Penn National Race
Course, located outside of Harrisburg, one of two thoroughbred racetracks in
Pennsylvania, and Pocono Downs, located outside of Wilkes-Barre, one of two
harness racetracks in Pennsylvania. We also operate eleven off-track wagering
facilities, or OTWs, in Pennsylvania and hold a 50% interest in Pennwood
Racing, Inc., a joint venture that owns and operates Freehold Raceway and
operated Garden State Park in New Jersey until May 2001.
------------------------
We are the successor to several businesses that have operated the Penn
National Race Course since 1972. We were incorporated in Pennsylvania in 1982 as
PNRC Corp. and adopted our present name in 1994. Our principal executive offices
are located in the Wyomissing Professional Center, 825 Berkshire Boulevard,
Suite 200, Wyomissing, Pennsylvania 19610; our telephone number is
(610) 373-2400.
2
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, we intend to use the
net proceeds of any securities sold for general corporate purposes, which may
include financing of capital expenditures, additions to working capital,
reductions of our indebtedness, potential acquisitions and the repurchase of our
common stock. Funds not immediately required for such purposes may be invested
in short-term investment grade securities.
We will not receive any proceeds from the sale of common stock by any
selling shareholders.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets for our ratio of earnings to fixed charges for the
periods indicated:
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------------------------- -----------------------
2000 1999 1998 1997 1996 2001 2000
-------- -------- -------- -------- -------- ---- ----
Ratio of earnings to fixed
charges(1)........................... 2.1 1.8 2.3 2.2 11.7 1.7 2.3
- ------------------------
(1) In computing the ratio of earnings to fixed charges: (i) earnings were
calculated as the sum of income from continuing operations, before income
taxes and fixed charges, less capitalized interest; and (ii) fixed charges
were computed as the sum of interest expense, amortization of capitalized
debt costs and premium on debt, capitalized interest and the estimated
interest included in rental expense.
3
DESCRIPTION OF CAPITAL STOCK
The total number of shares of all classes of capital stock that we currently
have authority to issue is 21,000,000, consisting of 20,000,000 shares of common
stock, par value $.01 per share, and 1,000,000 shares of preferred stock, par
value $.01 per share. We filed a preliminary proxy statement on June 22, 2001 in
connection with a special meeting of shareholders expected to be held on
July 23, 2001 for a vote on an amendment to our amended and restated articles of
incorporation, as amended, to increase the number of authorized shares of our
common stock to 200,000,000. The affirmative vote of a majority of the holders
of our outstanding capital stock is required to adopt this amendment. We have
filed a copy of the proxy statement with the Commission.
As of May 31, 2001, there were approximately 15.5 million shares of common
stock outstanding held of record by 599 persons. Approximately 2.6 million
shares of common stock are reserved for issuance upon the exercise of
outstanding stock options. We have authorized and reserved for issuance 400,000
shares of preferred stock in connection with the preferred share purchase rights
plan described below.
In the discussion that follows, we have summarized selected provisions of
our articles of incorporation and our bylaws relating to our capital stock. You
should read our articles of incorporation and bylaws as currently in effect for
more details regarding the provisions we describe below and for other provisions
that may be important to you. We have filed copies of those documents with the
Commission, and they are filed with or incorporated by reference as exhibits to
this registration statement. Please read "Where You Can Find More Information."
COMMON STOCK
The holders of our common stock are entitled to one vote for each share held
of record on each matter submitted to a vote of shareholders and do not have
cumulative voting rights. Holders of common stock are entitled to receive
ratably those dividends, if any, as may be declared from time to time by the
Board of Directors, in its discretion, out of funds legally available therefor,
subject to any preferential dividend rights of outstanding preferred stock. In
the event of a liquidation, dissolution or winding up of Penn National, the
holders of our common stock are entitled to share ratably in all assets
remaining after the payment of all of our liabilities and subject to the
liquidation preferences of any outstanding preferred stock. Our common stock
does not carry preemptive rights, is not redeemable, does not have any
conversion rights, is not subject to further calls and is not subject to any
sinking fund provisions. The outstanding shares of common stock are and the
shares offered by us in this offering will be, when issued and paid for, fully
paid and nonassessable. Except in certain circumstances as discussed below under
"--Possible Antitakeover Effect of Certain Charter, Bylaw and Other Provisions,"
our common stock is not subject to discriminatory provisions based on ownership
thresholds.
The rights, preferences and privileges of holders of our common stock are
subject to, and may be adversely affected by, the rights of the holders of
shares of the Series A Preferred Stock, if issued, and any series of preferred
stock that we may designate and issue in the future. See "--Preferred Stock."
PREFERRED STOCK
Our articles of incorporation authorize the issuance of up to 1,000,000
shares of preferred stock. The Board of Directors is authorized, subject to any
limitations prescribed by law, to issue such shares of preferred stock in one or
more series, with such rights, preferences, privileges and restrictions,
including voting rights, dividend rights, conversion rights, redemption
privileges and liquidation preferences, as shall be established by the Board of
Directors at the time of issuance. The Board of Directors has designated 400,000
shares of preferred stock as Series A Preferred Stock, par value $.01 per share,
for issuance in connection with the Preferred Share Purchase Rights Plan
described below.
4
The prospectus supplement relating to any series of preferred stock we may
offer will include specific terms relating to the offering. The description of
the terms of the preferred stock to be set forth in an applicable prospectus
supplement will not be complete and will be subject to and qualified by the
statement with respect to shares of the applicable series of preferred stock.
You should read that document for provisions that may be important to you. We
will include that document as an exhibit to a filing with the Commission in
connection with the offering of preferred stock.
The authorized shares of preferred stock, as well as shares of common stock,
are available for issuance without further action by our shareholders, unless
shareholder action is required by the rules of any stock exchange or
over-the-counter market on which our securities are listed or traded. If the
approval of our shareholders is not required for the issuance of shares of
preferred stock or common stock, the Board of Directors may determine not to
seek shareholders approval.
The issuance of preferred stock by the Board of Directors could adversely
affect the rights of holders of common stock. For example, the issuance of
shares of preferred stock could result in securities outstanding that would have
preference over the common stock with respect to dividends and in liquidation
and that could (upon conversion or otherwise) enjoy all of the rights of the
common stock.
The authority possessed by the Board of Directors to issue preferred stock
could potentially be used to discourage attempts by third persons to obtain
control of the Company through merger, tender offer, proxy or consent
solicitation or otherwise, by making such attempts more difficult to achieve or
more costly. The Board of Directors may issue preferred stock with voting rights
that could adversely affect the voting power of holders of our common stock. See
"--Possible Antitakeover Effect of Certain Charter, Bylaw and Other Provisions."
PREFERRED SHARE PURCHASE RIGHTS
Our preferred share purchase rights plan is currently associated with each
outstanding share of our common stock. Each of these rights entitles the
registered holder to purchase from us one-hundredth of a share of our Series A
preferred stock or a combination of securities and assets of equivalent value,
at a purchase price of $40.00 per one-hundredth of a share, subject to
adjustment.
These rights are exercisable only upon the first to occur of the following
events:
- the close of business on the third business day following a public
announcement that a person or group has acquired or obtained 15% or more
of our outstanding common stock;
- the close of business on the tenth business day following the commencement
of a tender offer that would result in a person or group owning 20% or
more of our outstanding common stock; or
- the close of business on the tenth business day after a determination by
at least a majority of members of our Board of Directors whom have been
members prior to May 2, 1999 (referred to herein as Continuing Directors)
that any person or group, alone or together with its affiliates, has
become the holder of a substantial amount of our common stock:
(i) and such ownership is intended to cause Penn National to repurchase
the common stock owned by such person or group or to cause pressure
on Penn National to take action or enter into a transaction or
series of transactions intended to provide such person or group with
short-term financial gain under circumstances where at least a
majority of the Continuing Directors determines that the best
long-term interests of Penn National and our shareholders would not
be served by taking such action or entering into such transaction or
series of transactions at that time, or
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(ii) and such ownership is causing or reasonably likely to cause a
material adverse impact (including, but not limited to, impairment
of relationships with customers or impairment of our ability to
maintain our competitive position) on our business or prospects.
Upon the first to occur of the above events, the preferred purchase rights
will separate and be distributed to each registered holder of our common stock.
The rights will expire on March 18, 2009, unless earlier redeemed or exchanged
as provided in the preferred share purchase rights plan.
The rights will have anti-takeover effects. The rights could cause
substantial dilution to a person or group that attempts to acquire us and effect
a change in the composition of our Board of Directors on terms not approved by
the Board of Directors, including by means of a tender offer at a premium to the
market price. The rights should not interfere with any merger or business
combination approved by the Board of Directors because we may redeem the rights
at the redemption price prior to the time that person has become an acquiring
person.
POSSIBLE ANTITAKEOVER EFFECT OF CERTAIN CHARTER, BYLAW AND OTHER PROVISIONS
Our articles of incorporation, as amended, and bylaws provide that the Board
of Directors is to consist of three classes of directors, each comprised as
nearly as practicable of one-third of the Board, and that one-third of the Board
is to be elected each year. At each annual meeting, only directors of the class
whose term is expiring are voted upon, and upon election each such director
serves a three-year term. Our articles of incorporation provide that a director
may be removed with or without cause only by the affirmative vote of the holders
of 75% of the voting power of all shares of our capital stock entitled to vote
generally in the election of directors, voting as a single class; our bylaws
provide that a director may only be removed without cause by written consent of
the shareholders and not at a meeting.
Our articles of incorporation provide that shareholder-proposed nominations
for election of directors and shareholder-proposed business at meetings of
shareholders is subject to the advance notice requirements contained in the
bylaws, which may be amended by the directors.
The provisions of our articles of incorporation with respect to
classification of the Board of Directors and shareholder approval of the removal
of directors with or without cause may not be altered, amended or repealed
without the affirmative vote of the holders of at least 75% of the voting power
of all shares of our capital stock entitled to vote generally in the election of
directors, voting as a single class.
The Pennsylvania Business Corporation Law, or BCL, contains a number of
interrelated provisions that are designed to support the validity of actions
taken by the Board of Directors in response to takeover bids, including
specifically the Board's authority to "accept, reject or take no action" with
respect to a takeover bid, and permitting the unfavorable disparate treatment of
a takeover bidder. One provision requires that mergers with or sales of assets
to an "interested shareholder" (which includes a shareholder who is a party to
the proposed transaction) be approved by a majority of voting shares
outstanding, other than those held by the interested shareholder, unless, prior
to the date on which the interested shareholder became an interested
shareholder, the transaction has been approved by a majority of the
corporation's directors who are not affiliated with the interested shareholder,
or the transaction results in the payment to all other shareholders of an amount
not less than the highest amount paid for shares by the interested shareholder.
Another provision of the BCL gives the directors broad discretion in considering
the best interests of the corporation, including a provision that permits the
Board, in taking any action, to consider various corporate interests, including
employees, suppliers, clients and communities in which the corporation is
located, the short and long-term interests of the corporation, and the
resources, intent and conduct of any person seeking to acquire control of the
corporation. Another provision prohibits, subject to certain exceptions, a
"business combination" with a shareholder or group of shareholders beneficially
owning more than 20% of the voting power of a
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public corporation (excluding certain shares) for a five-year period following
the date on which the holder became an interested shareholder.
The effect of the BCL's antitakeover provisions may be to deter unsolicited
takeover attempts or other attempts to accumulate our stock. This may promote
stability in our business, management and control, and in the price of our
capital stock. However, by discouraging open market accumulation of our capital
stock and non-solicited, non-negotiated takeover attempts, shareholders may be
disadvantaged by foregoing the opportunity to participate in such transactions,
which may be in excess of the prevailing market price for our capital stock. In
addition, while the antitakeover provisions may encourage a party considering
accumulating stock in or acquiring Penn National to negotiate with the Board,
and place the Board in a better position to defend against actions it believes
not to be in the best interests of Penn National and its shareholders, the
provisions may also make it more difficult to accomplish a transaction requiring
shareholder approval if the Board disapproves (even if the shareholders may be
in favor of such a transaction).
The restrictions imposed by gaming and regulatory authorities to which we
are subject on share ownership and transfer may also discourage or make it more
difficult for a party to accumulate stock in or acquire us, as many of these
entities have broad discretion in approving our activities and approving our
shareholders. See "--Certain Restrictions on Share Ownership and Transfer."
POSSIBLE ANTITAKEOVER EFFECTS STEMMING FROM CONCENTRATED SHAREHOLDER BASE
Peter M. Carlino, our Chairman of the Board and Chief Executive Officer, by
virtue of his ability to vote the shares of common stock held by him and the
Carlino Family Trust, may be able significantly to influence the election of
directors and our business and affairs. The trustees of the Carlino Family
Trust, by virtue of their ability to vote the shares of common stock held in the
Carlino Family Trust in certain circumstances, may be able to significantly
influence the approval or disapproval of the sale of all or substantially all of
our assets or a merger, consolidation or liquidation. In addition, in the event
the Carlino Family Trust proposes to sell common stock representing more than 3%
of our outstanding common stock, Peter M. Carlino and other Carlino siblings
have the right to acquire such common stock on the price and terms proposed.
Peter M. Carlino's control position and certain other provisions of the Carlino
Family Trust could deter unsolicited takeover attempts to the same or greater
extent than any provisions of the BCL or applicable gaming and racing
regulations.
CERTAIN RESTRICTIONS ON OWNERSHIP AND TRANSFER OF OUR SECURITIES
We are subject to federal, state and local regulations that relate to our
current live racing, pari-mutuel, gaming machine and casino operations, and that
impose certain restrictions on the ownership and transfer of our securities. The
following description of the regulatory environment regarding restrictions on
ownership and transfer of our securities is only a summary and not a complete
recitation of all applicable regulatory laws. Moreover, ownership and transfer
of our securities could be subjected at any time to additional or more
restrictive regulations, including regulation in applicable jurisdictions where
there are no current restrictions on the ownership and transfer of our
securities.
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WEST VIRGINIA
The West Virginia Racetrack Video Lottery Act provides that the transfer of
more than 5% of the voting stock of a corporation that holds a gaming machine
license, or that controls another entity that holds such a license, or the
transfer of the assets of a license holder may only be to persons who have met
the licensing requirements of the West Virginia Racetrack Video Lottery Act or
which transfer has been pre-approved by the West Virginia Lottery Commission.
Any transfer that does not comply with this requirement voids the license. If
the number of shares that we intend to issue pursuant to a particular offering
under this registration statement exceeds 5% of our outstanding voting stock at
the time of such offering, we may be required to seek approval by the West
Virginia Lottery Commission and the West Virginia Racing Commission. The
issuance of preferred stock and debt securities pursuant to this prospectus and
any prospectus supplement also may be subject to the approval of the West
Virginia Lottery Commission and the West Virginia Racing Commission.
MISSISSIPPI
Mississippi statutes and regulations give the Mississippi Gaming Commission
the discretion to require a suitability finding with respect to anyone who
acquires any of our securities, regardless of the percentage of ownership. The
current policy of the Mississippi Gaming Commission is to require anyone
acquiring 5% or more of any voting securities of a public company with a
licensed subsidiary or private company licensee to be found suitable. However,
the Mississippi Gaming Commission generally permits certain "institutional"
investors to beneficially own up to 15% of the voting securities of a registered
public company without a finding of suitability. If the owner of voting
securities who is required to be found suitable is a corporation, partnership or
trust, it must submit detailed business and financial information including a
list of beneficial owners. The applicant is required to pay all costs of
investigation.
Any owner of voting securities found unsuitable and who holds, directly or
indirectly, any beneficial ownership of our equity interests beyond such period
of time as may be prescribed by the Mississippi Gaming Commission may be guilty
of a misdemeanor. Any person who fails or refuses to apply for a finding of
suitability or a license within 30 days of being ordered to do so by the
Mississippi Gaming Commission may be found unsuitable. We are subject to
disciplinary action if we, after receiving notice that a person is unsuitable to
be an owner of or to have any other relationship with us, (1) pay the unsuitable
person any dividends or interest upon any of our securities or any payments or
distribution of any kind whatsoever, (2) recognize the exercise, directly or
indirectly, of any voting rights of our securities by the unsuitable person, or
(3) pay the unsuitable person any remuneration in any form for services rendered
or otherwise, except in certain limited and specific circumstances. In addition,
if the Mississippi Gaming Commission finds any owner of voting securities
unsuitable, such owner must immediately surrender all securities to us, and we
must purchase the securities so offered for cash at fair market value within
10 days.
We will be required to maintain current ownership ledgers in the State of
Mississippi that may be examined by the Mississippi Gaming Commission at any
time. If any securities are held in trust by an agent or by a nominee, the
record holder may be required to disclose the identity of the beneficial owner
to the Mississippi Gaming Commission. A failure to make such disclosure may be
grounds for finding the record holder unsuitable. We are also required to render
maximum assistance in determining the identity of the beneficial owner. We may
be required to disclose to the Mississippi Gaming Commission, upon request, the
identities of the holders of certain of our indebtedness. In addition, the
Mississippi Gaming Commission under the Mississippi Act may, in its discretion,
(1) require holders of debt securities, including the debt securities that may
be issued under this prospectus and any prospectus supplement, to file
applications, (2) investigate such holders, and (3) require such holders to be
found suitable to own such debt securities. Although the Mississippi Gaming
Commission generally does not require the individual holders of obligations to
be investigated
8
and found suitable, the Mississippi Gaming Commission retains the discretion to
do so for any reason, including but not limited to a default, or where the
holder of the debt instrument exercises a material influence over the gaming
operations of the entity in question. Any holder of the debt securities required
to apply for a finding of suitability must pay all investigative fees and costs
of the Mississippi Gaming Commission in connection with such an investigation.
The regulations provide that we may not engage in any transaction that would
result in a change of our control without the prior approval of the Mississippi
Gaming Commission. Mississippi law prohibits us from making a public offering or
private placement of our securities without the approval of or waiver of
approval by the Mississippi Gaming Commission if any part of the proceeds of the
offering is to be used to finance the construction, acquisition or operation of
gaming facilities in Mississippi, or to retire or extend obligations incurred
for one or more of such purposes. The Mississippi Gaming Commission has the
authority to grant a continuous approval of securities offerings and has granted
us such approval, subject to an annual renewal.
Regulations of the Mississippi Gaming Commission prohibit certain
repurchases of securities of publicly traded corporations registered with the
Mississippi Gaming Commission without prior approval of the Mississippi Gaming
Commission. Transactions covered by these regulations are generally aimed at
discouraging repurchases of securities at a premium over market price from
certain holders of greater than 3% of the outstanding securities of the
registered publicly traded corporation. The regulations of the Mississippi
Gaming Commission also require prior approval for a "plan of recapitalization"
as defined in such regulations.
The Mississippi Act requires that certificates representing our securities
bear a legend to the general effect that the securities are subject to the
Mississippi Act and regulations of the Mississippi Gaming Commission. The
Mississippi Gaming Commission through the power to regulate licensees, has the
power to impose additional restrictions on the holders of our securities at any
time.
LOUISIANA
We are subject to regulation by the State of Louisiana as a result of our
ownership of LCCI, the operator of the Casino Rouge riverboat. Certain
regulations imposed by the Louisiana Riverboat Economic Development and Gaming
Control Act or rules adopted pursuant thereto require that owners holding
greater than a 5% interest in LCCI must be found suitable by the Louisiana
Gaming Control Board.
PENNSYLVANIA
Our horse racing operations at Penn National Race Course and Pocono Downs
are subject to extensive regulation under the Pennsylvania Racing Act. The
Pennsylvania Racing Act requires that any shareholder proposing to transfer
beneficial ownership of 5% or more of our shares file an affidavit with us
setting forth certain information about the proposed transfer and transferee, a
copy of which we are required to furnish to the Pennsylvania Racing Commissions.
The certificates representing our shares owned by 5% beneficial shareholders are
required to bear certain legends prescribed by the Pennsylvania Racing Act. In
addition, under the Pennsylvania Racing Act, the Pennsylvania Racing Commissions
have the authority to order a 5% beneficial shareholder of a company to dispose
of his common stock of such company if it determines that continued ownership
would be inconsistent with the public interest, convenience or necessity or the
best interest of racing generally.
DESCRIPTION OF DEBT SECURITIES
The following provides a general description of the terms of the debt
securities that we may issue. The particular terms of any debt securities
offered by any prospectus supplement and the extent, if any,
9
to which the general provisions set forth below may not apply will be described
in the prospectus supplement relating to those debt securities.
We filed a form of indenture as an exhibit to the registration statement of
which this prospectus is a part. The debt securities will be issued under one or
more indentures, each dated as of a date on or before the issuance of the debt
securities to which it relates and in the form filed, subject to any amendments
or supplements as we may adopt from time to time. Each indenture will be entered
into between us, as obligor, a trustee chosen by us and qualified to act as a
trustee under the Trust Indenture Act of 1939, and any of our subsidiaries which
guarantee our obligations under the indenture. You should read the indenture
because it, and not this description, will control your rights as a holder of
debt securities. The terms of the indenture are also governed by the Trust
Indenture Act.
GENERAL
The debt securities will be our direct obligations, which will be unsecured,
rank subordinate to our credit facilities, of which approximately
$308.9 million was outstanding on March 31, 2001 and may rank subordinate to,
equally with or senior to our other indebtedness, including our senior
subordinated notes due 2008, of which $200 million was outstanding on March 31,
2000. The indenture provides that unsecured subordinated debt securities may be
issued without limit as to aggregate principal amount, in one or more series, in
each case as established from time to time in or pursuant to authority granted
by a resolution from our board of directors or as established in one or more
indentures supplemental to the indenture. All debt securities of one series do
not need to be issued at the same time. Additionally, unless otherwise provided,
a series may be reopened, without the consent of the holders of the debt
securities of such series, for issuances of additional debt securities of such
series.
TERMS OF THE DEBT SECURITIES
You should refer to the prospectus supplement for some or all of the
following terms of each series of the debt securities in respect of which this
prospectus is being delivered:
- the designation, aggregate principal amount and authorized denominations
of the series;
- the issue price as a percentage of the principal amount at which the
series will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the maturity or upon redemption thereof and the rate or
rates at which original issue discount will accrue;
- the date or dates on which the series will mature;
- the rate or rates per annum, if any, at which the series will bear
interest;
- the times from which any interest will accrue, be payable and the record
dates pertaining thereto;
- the place or places where the principal and interest, if any, on the
series will be payable;
- any redemption or other special terms;
- the events of default and covenants relating to the debt securities which
are in addition to, modify or delete those described herein;
- whether the debt securities will be issued in certificated or book-entry
form, and the denominations thereof;
- if applicable, the terms of any right to convert debt securities into
shares of our common stock or other securities or property;
10
- provisions, if any, for the defeasance or discharge of certain of our
obligations with respect to such debt securities, which provisions may be
in addition to, in substitution for, or in modification of (or any
combination of the foregoing), the provisions of the indenture;
- the manner in which the amounts of payment of principal of, premium, if
any, or any interest on such debt securities will be determined, if such
amounts may be determined by reference to an index based on a currency or
currencies other than that in which such debt securities are denominated
or designated to be payable or by reference to a commodity, commodity
index, stock exchange index or financial index;
- a discussion of any material and/or special United States federal income
tax considerations applicable to such debt securities;
- any depositaries, trustees, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt
securities other than those originally appointed;
- whether such debt securities will be issued in the form of one or more
global securities and whether such global securities are to be issuable in
a temporary global form or permanent global form;
- the terms, if any, on which such debt securities will be subordinate to
other debt;
- any listing or intended listing of the debt securities on a securities
exchange;
- the provisions, if any, relating to any guarantees of the debt securities;
and
- any other terms of the debt securities, which will not be inconsistent
with the provisions of the indenture.
Our debt securities may be sold at a discount below their principal amount.
Even if our debt securities are not issued at a discount below their principal
amount, these securities may, for United States federal income tax purposes, be
deemed to have been issued with original issue discount because of certain
interest payment or other characteristics. Special United States federal income
tax considerations applicable to debt securities issued with original issue
discount will be described in more detail in any applicable prospectus
supplement. In addition, special United States federal tax considerations or
other restrictions or terms applicable to any debt securities offered
exclusively to foreigners or denominated in a currency other than United States
dollars will also be set forth in the prospectus supplement, if applicable.
INFORMATION ABOUT THE TRUSTEE
Our indenture provides that there may be more than one trustee, each with
respect to one or more series of debt securities. Any trustee under our
indenture may resign at any time or be removed with respect to one or more
series of debt securities, and a successor trustee may be appointed to act with
respect to such series. If two or more persons are acting as trustees with
respect to different series of debt securities, each trust shall be separate and
apart from the trust administered by any other trustee. Except as indicated in
this prospectus or any prospectus supplement, any action to be taken by the
trustee may be taken only with respect to the one or more series of debt
securities for which it is trustee under the indenture.
MERGER, CONSOLIDATION OR SALE OF ASSETS
Our indenture does not allow us to consolidate or merge with or into, or
sell, assign, convey, transfer or lease our properties and assets, substantially
in their entirety, as computed on a consolidated basis, to another corporation,
person or entity unless:
- either we are the surviving person, in the case of a merger or
consolidation, or the successor or transferee is a corporation organized
under the laws of the United States, or any state thereof or the District
of Columbia and the successor or transferee corporation expressly assumes,
by supplemental indenture, all of our obligations under the debt
securities and the indenture; and
- no default or event of default exists immediately after such transaction.
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DENOMINATIONS
Unless we specify in the prospectus supplement, the debt securities of any
series will be issuable only as debt securities in denominations of $1,000, and
any integral multiples thereof, and will be payable only in U.S. dollars. The
indenture also provides that debt securities of a series may be issuable in
global form. See "Global Securities" below.
REGISTRATION AND TRANSFER
If you surrender for transfer your registered debt securities at the office
or agency we maintain for such purpose, we will deliver, in the name you have
designated as transferee, one or more new debt securities of the same series of
like aggregate principal amount in such denominations as are authorized for debt
securities of such series and of a like maturity and with like terms and
conditions. You will not incur a service charge for any transfer or exchange of
debt securities, but we may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection with the transfer or
exchange.
We will not be required to:
- register, transfer or exchange debt securities of any series during a
period beginning with the opening of business 15 days before the day of
the transmission of a notice of redemption of debt securities of such
series selected for redemption, and ending at the close of business on the
day of the transmission; or
- register, transfer or exchange any debt security so selected for
redemption in whole or in part, except the unredeemed portion of any debt
security being redeemed in part.
EVENTS OF DEFAULT
Unless we inform you otherwise in the prospectus supplement, events of
default means any of the following:
- default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days;
- default in the payment of principal of or premium, if any, on any debt
security of that series when due;
- if applicable, default in the deposit of any sinking fund payment, when
and as due in respect of any debt security of that series;
- default in the performance, or breach, of any covenants or warranties in
the indenture if the default continues uncured for a period of 60 days
after written notice to us by the applicable trustee or to us and the
applicable trustee by the holders of at least 25% in principal amount of
the outstanding debt securities of that series as provided in the
indenture; and
- certain events of bankruptcy, insolvency or reorganization.
If an event of default for any series of debt securities, which are at that
time outstanding, occurs and continues, then the applicable trustee or the
holders of not less than 25% in principal amount of the outstanding debt
securities of that series may, by a notice in writing to us, and to the
applicable trustee if given by the holders, declare to be due and payable
immediately the principal, or, if the debt securities of that series are
discount securities, such portion of the principal amount as may be specified in
the terms of that series and premium, if any, of all debt securities of that
series.
At any time after a declaration of acceleration with respect to debt
securities of any series has been made, but before a judgment or decree for
payment of the money due has been obtained by the
12
applicable trustee, the holders of a majority in principal amount of the
outstanding debt securities of that series may, subject to our having paid or
deposited with the trustee a sum sufficient to pay overdue interest and
principal which has become due other than by acceleration and certain other
conditions, rescind and annul such acceleration if all events of default, other
than the non-payment of accelerated principal and premium, if any, with respect
to debt securities of that series, have been cured or waived as provided in the
indenture. For information as to waiver of defaults see the discussion set forth
below under "Modification and Waiver."
You should refer to our prospectus supplement with regard to any series of
debt securities that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of such discount
securities upon the occurrence and continuation of an event of default.
The indenture provides that the trustee is not obligated to exercise any of
its rights or powers under the indenture at the request of any holder of
outstanding debt securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain rights of the
trustee, the holders of a majority in principal amount of the outstanding debt
securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on the trustee with respect to the debt
securities of that series.
No holder of any debt security of any series will have any right to
institute any proceeding, judicial or otherwise with respect to the indenture or
for the appointment of a receiver or trustee, or for any remedy under the
indenture, unless such holder shall have previously given to the applicable
trustee written notice of a continuing event of default with respect to debt
securities of that series and the holders of at least 25% in principal amount of
the outstanding debt securities of that series shall have made written request,
and offered reasonable indemnity, to such trustee to institute such proceeding
as trustee, and the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities of that series
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, the holder of any debt security will have an
absolute and unconditional right to receive payment of the principal of,
premium, if any, and any interest on such debt security on or after the due
dates expressed in such debt security and to institute suit for the enforcement
of any such payment.
We are required by the indenture, within 120 days after the end of each
fiscal year, to furnish to the trustee a statement as to compliance with the
indenture. The indenture provides that the trustee with respect to any series of
debt securities may withhold notice to the holders of debt securities of such
series of any default or event of default (except a default in payment on any
debt securities of such series) with respect to debt securities of such series
if and so long as a committee of its trust officers, in good faith, determines
that withholding such notice is in the interest of the holders of debt
securities of such series.
MODIFICATION AND WAIVER
We and the applicable trustee, at any time and from time to time, may modify
the indenture without prior notice to or consent of any holder of any series of
debt securities for any of the following purposes:
- to permit a successor corporation to assume our covenants and obligations
under the indenture and in such series of debt securities in accordance
with the terms of the indenture;
- to add to our covenants for the benefit of the holders of any series of
debt securities (and if the covenants are to be for the benefit of less
than all the series, we shall state that the covenants are expressly being
included solely for the benefit of the applicable series);
- to surrender any of our rights or powers conferred in the indenture;
13
- to add any additional events of default (and if the events of default are
to be applicable to less than all series, we shall state that the events
of default are expressly being included solely for the benefit of the
applicable series);
- to add to, change or eliminate any of the provisions of the indenture in a
manner that will become effective only when there is no outstanding debt
security which is entitled to the benefit of the provision and as to which
the modification would apply;
- to secure a series of debt securities or to provide that our obligations
under a series of debt securities or the indenture will be guaranteed and
the terms and conditions for the release or substitution of the security
or guarantee;
- to supplement any of the provisions of the indenture to the extent needed
to permit or facilitate the defeasance and discharge of a series of debt
securities in a manner that will not adversely affect the interests of the
holders of debt securities of that series or any other series of debt
securities issued under the indenture in any material respect;
- to establish the form or terms of debt securities as permitted by the
indenture;
- to provide for the acceptance of appointment by a successor trustee
regarding one or more series of debt securities and to add to or change
any of the provisions of the indenture as is necessary to provide for the
administration of the trusts by more than one trustee;
- to comply with the requirements of the Securities and Exchange Commission
in connection with qualification of the indenture under the Trust
Indenture Act;
- to cure any ambiguity;
- to correct or supplement any provision in the indenture which may be
defective or inconsistent with any other provision in the indenture;
- to eliminate any conflict between the terms of the indenture and the debt
securities and the Trust Indenture Act; or
- to make any other provisions with respect to matters or questions arising
under the indenture which will not be inconsistent with any provision of
the indenture as long as the new provisions do not adversely affect in any
material respect the interests of the holders of any outstanding debt
securities of any series created prior to the modification.
We may also modify the indenture for any other purpose if we receive the
written consent of the holders of not less than a majority in principal amount
of the outstanding debt securities of each series affected by such modification
voting separately. However, we may not, without the consent of the holder of
each outstanding debt security of each series affected:
- change the stated maturity or reduce the principal amount or the rate of
interest, or extend the time for payment of interest of any debt security
or any premium payable upon the redemption of any debt security, or change
the stated maturity of, or reduce the amount of the principal of a
discount security that would be due and payable upon a declaration of
acceleration of the maturity of a discount security or impair the right to
institute suit for the enforcement of any payment on or after the due date
thereof (including, in the case of redemption, on or after the redemption
date), or alter any redemption provisions in a manner adverse to the
holders of such series of debt securities;
- reduce the percentage in principal amount of the outstanding debt
securities of a series where the consent of the holder is required for any
such amendment, supplemental indenture or waiver which is provided for in
the indenture;
- if applicable, adversely affect the right of a holder to convert any debt
security;
14
- modify any of the waiver provisions, except to increase any required
percentage or to provide that certain other provisions of the indenture
cannot be modified or waived without the consent of the holder of each
outstanding debt security which would be affected; or
- modify any provision described in the prospectus supplement as requiring
the consent of each affected holder of debt securities.
A modification that changes or eliminates any covenant or other provision of
the indenture with respect to one or more particular series of debt securities,
or that modifies the rights of the holders of debt securities of a series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under the indenture of the holders of debt securities of any other
series.
The indenture provides that the holders of not less than a majority in
aggregate principal amount of the then outstanding debt securities of any
series, by notice to the relevant trustee, may on behalf of the holders of the
debt securities of such series waive any default and its consequences under the
indenture, except (1) a continuing default in the payment of interest on,
premium, if any, or the principal of, any such debt security held by a
nonconsenting holder or (2) a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the holder of
each outstanding debt security of each series affected.
DEFEASANCE OF DEBT SECURITIES OR CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
DEFEASANCE AND DISCHARGE. The indenture provides that we may be discharged
from any and all obligations under any debt securities other than:
- certain obligations to pay additional amounts, if any, upon the occurrence
of certain tax, assessment or governmental charge events regarding
payments on debt securities;
- to register the transfer or exchange of debt securities;
- to replace stolen, lost or mutilated debt securities; or
- to maintain paying agencies and to hold money for payment in trust.
We may only defease and discharge all of our obligations under the debt
securities of any series if:
- we irrevocably deposit with the trustee, in trust, the amount, as
certified by an officers' certificate, of money and/or U.S. government
obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will be sufficient to pay and
discharge each installment of principal and premium, if any and any
interest on, and any mandatory sinking fund payments in respect of, the
debt securities of such series on the dates such payments are due; and
- we deliver to the trustee an opinion of counsel or a ruling from the
United States Internal Revenue Service, in either case to the effect that
holders of the debt securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result of
such deposit, defeasance and discharge.
15
DEFEASANCE OF CERTAIN COVENANTS. Upon compliance with certain conditions,
we may omit to comply with certain restrictive covenants contained in the
indenture or in the applicable prospectus supplement or any other restrictive
covenant relating to any series of debt securities provided for in a board
resolution or supplemental indenture which by its terms may be defeased pursuant
to the terms of such series of debt securities. Any omission to comply with our
obligations or covenants shall not constitute a default or event of default with
respect to any debt securities. In that event, you would lose the protection of
these covenants, but would gain the protection of having money and/or U.S.
government obligations set aside in trust to repay the series of debt
securities. We may only defease any covenants if, among other requirements:
- we deposit with the trustee money and/or U.S. government obligations that,
through the payment of interest and principal in respect to such
obligations, in accordance with their terms, will provide money in an
amount, as certified by an officers' certificate, sufficient to pay
principal, premium, if any, and any interest on and any mandatory sinking
fund payments in respect of the debt securities of such series on the
dates such payments are due; and
- we deliver to the trustee an opinion of counsel or a ruling from the
United States Internal Revenue Service to the effect that the holders of
the debt securities of such series will not recognize income, gain or
loss, for United States federal income tax purposes, as a result of the
covenant defeasance.
LIMITED LIABILITY OF CERTAIN PERSONS
The indenture provides that none of our past, present or future
stockholders, incorporators, employees, officers or directors, or of any
successor corporation or any of our affiliates shall have any personal liability
in respect of our obligations under the indenture or the debt securities by
reason of his, her or its status as such stockholder, incorporator, employee,
officer or director.
MANDATORY DISPOSITION PURSUANT TO GAMING LAWS
The indenture provides that each holder and beneficial owner, by accepting
any of the debt securities subject thereto, shall be deemed to have agreed that
if the gaming authority of any jurisdiction of which we or any of our
subsidiaries conducts or proposes to conduct gaming, requires that a person who
is a holder or the beneficial owner of the debt securities be licensed,
qualified or found suitable under applicable gaming laws, such holder or
beneficial owner, as the case may be, shall apply for a license, qualification
or a finding of suitability within the required time period. If such person
fails to apply or become licensed or qualified or is found unsuitable, we shall
have the right, at our option:
- to require such person to dispose of its debt securities or beneficial
interest therein within 30 days of receipt of notice of our election or
such earlier date as may be requested or prescribed by such gaming
authority; or
- to redeem such debt securities at a redemption price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
earlier of the redemption date or the date of the finding of
unsuitability, which may be less than 30 days following the notice of
redemption if so requested or prescribed by the applicable gaming
authority or such lesser amount as may be required by applicable law or by
order of any gaming authority.
We shall notify the trustee in writing of any such redemption as soon as
practicable. We shall not be responsible for any costs or expenses any such
holder may incur in connection with its application for a license, qualification
or a finding of suitability.
16
CONVERSION RIGHTS
The terms and conditions, if any, upon which the debt securities are
convertible into common stock or other securities or property will be set forth
in the applicable prospectus supplement. Such terms will include the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at our option or at the option of the holders, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such debt securities.
GUARANTEE
The indenture provides that one or more of our subsidiaries may be a
guarantor and may "guarantee" the performance and punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all of our
obligations under the debt securities of any series and the indenture. The
liability of the guarantors will be independent of and not in consideration of
or contingent upon our liability or any other party obligated under the debt
securities or the indenture. A separate action or actions may be brought or
prosecuted against us or any other party obligated under the debt securities or
the indenture whether or not we or any other party obligated under the debt
securities or the indenture are joined in any such action or actions. However,
any guarantee will be limited to an amount not to exceed the maximum amount that
can be guaranteed by the guarantor without rendering the guarantee, as it
relates to such guarantor, original issue discountable under Section 548 of the
Federal Bankruptcy Code or any applicable provision of comparable state law.
This guarantee will be a continuing guarantee and will remain in full force and
effect until payment in full of all of the guaranteed obligations.
PAYMENT AND PAYING AGENTS
We covenant and agree, for the benefit of each series of debt securities,
that we will duly and punctually pay the principal of, premium, if any, and any
interest on the debt securities in accordance with the terms of the debt
securities and the indenture. We will maintain an office or agency where debt
securities of that series may be presented or surrendered for payment, where
debt securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon us in respect of the debt
securities of that series and the indenture may be served.
GLOBAL SECURITIES
The debt securities of any series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary identified in the applicable prospectus supplement relating to
such series. Global securities will be in registered form and may be issued in
either temporary or permanent form. The specific terms of the depositary
arrangement regarding a series of debt securities will be described in the
applicable prospectus supplement relating to such series.
SELLING SHAREHOLDERS
Certain of our shareholders may offer and sell shares of common stock
pursuant to this prospectus. We will identify any selling shareholders in a
prospectus supplement, along with other information about their ownership
holdings both before and after such sale.
17
PLAN OF DISTRIBUTION
We and, with respect to a portion of the common stock offered hereby, the
selling shareholders may sell the offered securities as follows:
- directly to one or more purchasers;
- through agents;
- to and through one or more dealers;
- to and through one or more underwriters; or
- through a combination of any such methods of sale.
The distribution of the offered securities pursuant to any applicable
prospectus supplement may be effected from time to time in one or more
transactions either:
- at a fixed price or prices which may be changed;
- at market prices prevailing at the time of sale;
- at prices related to such prevailing market prices; or
- at negotiated prices.
Offers to purchase the offered securities may be solicited directly by us.
Offers to purchase may also be solicited by agents designated by us from time to
time. Any such agent, who may be deemed to be an "underwriter" as that term is
defined in the Securities Act, involved in the offer or sale of the offered
securities in respect of which this prospectus is delivered will be named, and
any commissions which shall be payable by us to such agent will be set forth, in
the applicable prospectus supplement.
If a dealer is utilized in the sale of the offered securities, we will sell
the securities to the dealer, as principal. The dealer, who may be deemed to be
an "underwriter" as that term is defined in the Securities Act, may then resell
the securities to the public at varying prices to be determined by such dealer
at the time of resale.
If an underwriter is, or underwriters are, utilized in the sale of the
offered securities, we will execute an underwriting agreement with such
underwriters at the time of such sale to them and the names of the underwriters
will be set forth in the applicable prospectus supplement, which will be used by
the underwriters to make resales of the offered securities. In connection with
the sale of offered securities, such underwriters may be deemed to have received
compensation from us in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of debt securities and common stock
for whom they may act as agents. Underwriters may sell offered securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Any underwriting
compensation paid by us to underwriters in connection with the offering of
securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
prospectus supplement.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with us, to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which they may be required to make in
respect thereof. Underwriters and agents may also engage in transactions with,
or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters, dealers or other persons to solicit offers by certain institutions
to purchase offered securities from us pursuant to contracts providing for
payment and delivery on a future date or dates set forth in the applicable
18
prospectus supplement. Institutions with which such contracts may be made may
include, but are not limited to, commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others. The obligations of any purchaser under any such
contract will not be subject to any conditions except that the purchase of
offered securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject, and if the offered
securities are also being sold to underwriters, we shall have sold to such
underwriters the offered securities not sold for delayed delivery. The
underwriters, dealers and such other persons will not have any responsibility in
respect to the validity or performance of such contracts. The prospectus
supplement relating to such contracts will set forth the price to be paid for
offered securities pursuant to such contracts, the commissions payable for
solicitation of such contracts and the date or dates in the future for delivery
of offered securities pursuant to such contracts.
The anticipated date of delivery of offered securities will be set forth in
the applicable prospectus supplement relating to each offer.
LEGAL MATTERS
Certain matters with respect to the securities offered hereby will be passed
upon for us by Morgan, Lewis & Bockius LLP, Philadelphia, Pennsylvania.
EXPERTS
The financial statements for Penn National Gaming, Inc. and subsidiaries as
of December 31, 2000 and 1999, and for each of the three years in the period
ended December 31, 2000, incorporated by reference into this prospectus, have
been audited by BDO Seidman, LLP, independent public accountants, as indicated
in their report appearing therein.
The financial statements for Mardi Gras Casino Corp. as of December 31, 1999
and 1998, for each of the three years in the period ended December 31, 1999,
incorporated by reference into this prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report
appearing therein.
The financial statements for Mississippi-I Gaming, L.P. as of December 31,
1999 and 1998, for each of the three years in the period ended December 31,
1999, incorporated by reference into this prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report appearing therein.
The financial statements of CRC Holdings, Inc.--Gaming Division as of
November 30, 1999 and 2000, and for each of the three years in the period ended
November 30, 2000 incorporated by reference into this prospectus, have been so
incorporated by reference in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table shows the expenses of the issuance and distribution of
the securities offered hereby:
Securities and Exchange Commission registration fee......... $ 75,000
Legal fees and expenses..................................... 100,000
Trustee fees and expenses................................... 50,000
Printing and engraving expenses............................. 75,000
Accounting fees and expenses................................ 50,000
Miscellaneous............................................... 100,000
--------
Total................................................... $450,000
========
All of the amounts shown are estimates, except for fees payable to the
Securities and Exchange Commission.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws require it to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed proceeding by reason of the fact that he is or was a director or
officer of the Company or any other person designated by the Board of Directors
(which may include any person serving at the request of the Company as a
director, officer, employee, agent, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise), in each case, against certain liabilities (including, damages,
judgments, amounts paid in settlement, fines, penalties and expenses (including
attorneys' fees and disbursements)), except where such indemnification is
expressly prohibited by applicable law, where such person has engaged in willful
misconduct or recklessness or where such indemnification has been determined to
be unlawful. Such indemnification as to expenses is mandatory to the extent the
individual is successful on the merits of the matter. Pennsylvania law permits
the Company to provide similar indemnification to employees and agents who are
not directors or officers. The determination of whether an individual meets the
applicable standard of conduct may be made by the disinterested directors,
independent legal counsel or the stockholders. Pennsylvania law also permits
indemnification in connection with a proceeding brought by or in the right of
the Company to procure a judgment in its favor. Insofar as indemnification for
liabilities arising under the Securities Act of may be permitted to directors,
officers, or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in that Act and is therefore unenforceable.
We have in force and effect policies insuring our directors and officers
against losses which they or them will become legally obligated to pay by reason
of any actual or alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty by the directors and officers in the
discharge of their duties, individually or collectively, or any matter claimed
against them solely by reason of their being directors or officers. Such
coverage is limited by the specific terms and provisions of the insurance
policies.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
1.1* Form of Underwriting Agreement.
3.1+ Amended and Restated Articles of Incorporation of Penn
National Gaming, Inc., filed with the Pennsylvania
Department of State on October 15, 1996.
3.2+ Articles of Amendment to the Amended and Restated Articles
of Incorporation of Penn National Gaming, Inc., filed with
the Pennsylvania Department of State on November 13, 1996.
3.3+ Statement with respect to shares of Series A Preferred Stock
of Penn National Gaming, Inc., filed with the Pennsylvania
Department of State on March 16, 1999.
3.4 Bylaws of Penn National Gaming, Inc. (Incorporated by
reference from Exhibit No. 3.2 to the Registrant's
registration statement on Form S-1, File #33-77758, dated
May 26, 1994).
3.5* Form of any statement with respect to any preferred stock
issued hereunder.
4.1 Rights Agreement dated as of March 2, 1999, between Penn
National Gaming, Inc. and Continental Stock Transfer and
Trust Company (Incorporated by reference as an exhibit to
the Registrant's Current Report on Form 8-K, dated March 17,
1999).
4.2* Form of Indenture.
5.1* Opinion of Morgan, Lewis & Bockius LLP.
12.1+ Statements re: computation of ratios.
23.1+ Consent of BDO Seidman LLP.
23.2+ Consent of Arthur Andersen LLP.
23.3+ Consent of PricewaterhouseCoopers LLP.
24.1+ Powers of Attorney (included on the signature pages of this
Registration Statement).
25.1** Statement of Eligibility of Trustee on Form T-1.
- ------------------------
+ Filed herewith.
* To be filed by amendment or as an exhibit to a document to be incorporated
by reference herein in connection with the offered securities.
** To be filed pursuant to section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price
II-2
ITEM 17. UNDERTAKINGS. (CONTINUED)
set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Sections 13 or 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being involved therein, that was not the subject of and included in the
registration statement when it became effective.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act (the "Act") in accordance with the rules
and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL GAMING, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
Gaming, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
Chairman of the Board and
/s/ PETER M. CARLINO Chief Executive Officer
------------------------------------------- (Principal Executive June 22, 2001
Peter M. Carlino Officer)
Chief Financial Officer,
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ WILLIAM J. BORK
------------------------------------------- Director June 22, 2001
William J. Bork
/s/ HAROLD CRAMER
------------------------------------------- Director June 22, 2001
Harold Cramer
II-4
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ DAVID A. HANDLER
------------------------------------------- Director June 22, 2001
David A. Handler
/s/ JOHN M. JACQUEMIN
------------------------------------------- Director June 22, 2001
John M. Jacquemin
/s/ ROBERT P. LEVY
------------------------------------------- Director June 22, 2001
Robert P. Levy
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
BACKSIDE, INC.
By: /s/ RICHARD E. ORBANN
-----------------------------------------
Richard E. Orbann
PRESIDENT, SECRETARY, TREASURER AND
DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by
Backside, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
President, Secretary,
/s/ RICHARD E. ORBANN Treasurer and Director
------------------------------------------- (Principal Executive, June 22, 2001
Richard E. Orbann Financial and Accounting
Officer)
/s/ PETER M. CARLINO
------------------------------------------- Director June 22, 2001
Peter M. Carlino
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
BSL, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
CHIEF EXECUTIVE OFFICER AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by BSL, Inc., a
Mississippi corporation, in which the undersigned holds offices, and any and all
amendments to this Registration Statement, and including any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act with exhibits thereto and other documents
in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO Chief Executive Officer and
------------------------------------------- Director (Principal June 22, 2001
Peter M. Carlino Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ KEVIN DESANCTIS
------------------------------------------- President and Director June 22, 2001
Kevin Desanctis
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
BTN, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
CHIEF EXECUTIVE OFFICER AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by BTN, Inc., a
Mississippi corporation, in which the undersigned holds offices, and any and all
amendments to this Registration Statement, and including any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act with exhibits thereto and other documents
in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO Chief Executive Officer and
------------------------------------------- Director (Principal Executive June 22, 2001
Peter M. Carlino Officer)
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ KEVIN DESANCTIS President and Director Kevin
------------------------------------------- DeSanctis June 22, 2001
Kevin Desanctis
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
CHC CASINOS CORP.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by CHC Casinos
Corp., Inc., a Florida corporation, in which the undersigned holds offices, and
any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Chief Executive
------------------------------------------- Officer (Principal Executive June 22, 2001
Peter M. Carlino Officer)
/s/ ROBERT S. IPPOLITO Secretary, Treasurer and
------------------------------------------- Director (Principal Financial June 22, 2001
Robert S. Ippolito and Accounting Officer)
/s/ JOSEPH A. LASHINGER, JR. Vice President and Director
------------------------------------------- June 22, 2001
Joseph A. Lashinger, Jr.
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
CRC HOLDINGS, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by CRC
Holdings, Inc., a Florida corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Chief Executive
------------------------------------------- Officer (Principal Executive June 22, 2001
Peter M. Carlino Officer)
/s/ ROBERT S. IPPOLITO Secretary, Treasurer and
------------------------------------------- Director (Principal Financial June 22, 2001
Robert S. Ippolito and Accounting Officer)
/s/ JOSEPH A. LASHINGER, JR. Vice President and Director
------------------------------------------- June 22, 2001
Joseph A. Lashinger, Jr.
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
THE DOWNS RACING, INC.
By: /s/ JOSEPH A. LASHINGER, JR.
-----------------------------------------
Joseph A. Lashinger, Jr.
PRESIDENT, SECRETARY AND TREASURER
AND SOLE DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by The Downs
Racing, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
President, Secretary, Treasurer
/s/ JOSEPH A. LASHINGER, JR. and Sole Director (Principal
------------------------------------------- Executive, Financial and June 22, 2001
Joseph A. Lashinger, Jr. Accounting Officer)
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
EBETUSA.COM, INC.
By: /s/ JOSEPH A. LASHINGER, JR.
-----------------------------------------
Joseph A. Lashinger, Jr.
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by
eBetUSA.com, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ JOSEPH A. LASHINGER, JR.
------------------------------------------- President and Director June 22, 2001
Joseph A. Lashinger, Jr. (Principal Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary, Treasurer and
------------------------------------------- Director (Principal Financial June 22, 2001
Robert S. Ippolito and Accounting Officer)
/s/ PETER M. CARLINO
------------------------------------------- Director June 22, 2001
Peter M. Carlino
/s/ KEVIN DESANCTIS
------------------------------------------- Vice President and Director June 22, 2001
Kevin Desanctis Kevin DeSanctis
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
LOUISIANA CASINO CRUISES, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Louisiana
Casino Cruises, Inc., a Louisiana corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Chief Executive
------------------------------------------- Officer (Principal Executive June 22, 2001
Peter M. Carlino Officer)
/s/ ROBERT S. IPPOLITO Secretary, Treasurer and
------------------------------------------- Director (Principal Financial June 22, 2001
Robert S. Ippolito and Accounting Officer)
/s/ JOSEPH A. LASHINGER, JR. Vice President and Director
------------------------------------------- June 22, 2001
Joseph A. Lashinger, Jr.
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
MILL CREEK LAND, INC.
By: /s/ RICHARD E. ORBANN
-----------------------------------------
Richard E. Orbann
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Mill Creek
Land, Inc., a Pennsylvania corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ RICHARD E. ORBANN President and Director
------------------------------------------- (Principal Executive Officer) June 22, 2001
Richard E. Orbann
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ PETER M. CARLINO Director
------------------------------------------- June 22, 2001
Peter M. Carlino
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
MOUNTAINVIEW THOROUGHBRED RACING
ASSOCIATION
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Mountainview
Thoroughbred Racing Association, Inc., a Pennsylvania corporation, in which the
undersigned holds offices, and any and all amendments to this Registration
Statement, and including any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
with exhibits thereto and other documents in connection therewith, and to file
any and all of the same, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents or any of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Director
------------------------------------------- (Principal Executive Officer) June 22, 2001
Peter M. Carlino
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ HAROLD CRAMER Director
------------------------------------------- June 22, 2001
Harold Cramer
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
NORTHEAST CONCESSIONS, INC.
By: /s/ RICHARD E. ORBANN
-----------------------------------------
Richard E. Orbann
PRESIDENT, SECRETARY AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Northeast
Concessions, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ RICHARD E. ORBANN President, Secretary and
------------------------------------------- Director (Principal Executive June 22, 2001
Richard E. Orbann Officer)
/s/ ROBERT S. IPPOLITO Vice President and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ PETER M. CARLINO Director
------------------------------------------- June 22, 2001
Peter M. Carlino
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL GAMING OF WEST VIRGINIA, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
Gaming of West Virginia, Inc., a West Virginia corporation, in which the
undersigned holds offices, and any and all amendments to this Registration
Statement, and including any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
with exhibits thereto and other documents in connection therewith, and to file
any and all of the same, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents or any of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Director
------------------------------------------- (Principal Executive Officer) June 22, 2001
Peter M. Carlino
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ HAROLD CRAMER Director
------------------------------------------- June 22, 2001
Harold Cramer
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL GSFR, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
GSFR, Inc., a Delaware corporation, in which the undersigned holds offices, and
any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO Chairman of the Board and Chief
------------------------------------------- Executive Officer (Principal June 22, 2001
Peter M. Carlino Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ RICHARD E. OBRANN President, Chief Operating
------------------------------------------- Officer and Director June 22, 2001
Richard E. Obrann
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL HOLDING COMPANY
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
CHAIRMAN OF THE BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
Holding Company, a Delaware corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO Chairman of the Board, President
------------------------------------------- and Chief Executive Officer June 22, 2001
Peter M. Carlino (Principal Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary, Treasurer and
------------------------------------------- Director (Principal Financial June 22, 2001
Robert S. Ippolito and Accounting Officer)
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL SPEEDWAY, INC.
By: /s/ RICHARD CARLINO
-----------------------------------------
Richard Carlino
CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
Speedway, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
Chief Executive Officer
/s/ RICHARD CARLINO (Principal
------------------------------------------- Executive, Financial and June 22, 2001
Richard Carlino Accounting Officer)
/s/ PETER M. CARLINO Director
------------------------------------------- June 22, 2001
Peter M. Carlino
/s/ RICHARD E. ORBANN Director
------------------------------------------- June 22, 2001
Richard E. Orbann
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PENN NATIONAL TURF CLUB, INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Penn National
Turfclub, Inc., a Pennsylvania corporation, in which the undersigned holds
offices, and any and all amendments to this Registration Statement, and
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act with
exhibits thereto and other documents in connection therewith, and to file any
and all of the same, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents or any of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO President and Director
------------------------------------------- (Principal Executive Officer) June 22, 2001
Peter M. Carlino
Secretary and Treasurer
/s/ ROBERT S. IPPOLITO (Principal
------------------------------------------- Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ HAROLD CRAMER Director
------------------------------------------- June 22, 2001
Harold Cramer
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PNGI CHARLES TOWN FOOD & BEVERAGE LLC
By:PNGI CHARLES TOWN GAMING LIMITED LIABILITY
COMPANY (its sole member)
By:PENN NATIONAL GAMING OF WEST VIRGINIA, INC.
(its sole managing member)
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by PNGI Charles
Town Food & Beverage LLC, a West Virginia limited liability company, in which
the undersigned holds offices, and any and all amendments to this Registration
Statement, and including any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
with exhibits thereto and other documents in connection therewith, and to file
any and all of the same, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents or any of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ RICHARD L. MOORE Sole Manager (Principal
------------------------------------------- Executive, Financial and June 22, 2001
Richard L. Moore Accounting Officer)
II-22
SIGNATURE CAPACITY DATE
--------- -------- ----
By: Penn National Gaming of West Virginia, Inc., in
its capacity as sole managing member of PNGI
Charles Town Gaming Limited Liability Company, in
its capacity as sole member of PNGI Charles Town
Food & Beverage LLC
/s/ PETER M. CARLINO President and Director
------------------------------------------- June 22, 2001
Peter M. Carlino
By: Penn National Gaming of West Virginia, Inc., in
its capacity as sole managing member of PNGI
Charles Town Gaming Limited Liability Company, in
its capacity as sole member of PNGI Charles Town
Food & Beverage LLC
/s/ HAROLD CRAMER Director
------------------------------------------- June 22, 2001
Harold Cramer
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PNGI CHARLES TOWN GAMING LIMITED LIABILITY
COMPANY
BY: PENN NATIONAL GAMING OF
WEST VIRGINIA, INC. (its managing sole
member)
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by PNGI Charles
Town Gaming Limited Liability Company, a West Virginia limited liability
company, in which the undersigned holds offices, and any and all amendments to
this Registration Statement, and including any registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act with exhibits thereto and other documents in connection
therewith, and to file any and all of the same, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents or any of them full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
By: Penn National Gaming of West Virginia, Inc., in
its capacity as sole managing member of PNGI
Charles Town Gaming Limited Liability Company
/s/ PETER M. CARLINO President and Director
------------------------------------------- (Principal Executive June 22, 2001
Peter M. Carlino Officer)
By: Penn National Gaming of West Virginia, Inc., in
its capacity as sole managing member of PNGI
Charles Town Gaming Limited Liability Company
II-24
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
By: Penn National Gaming of West Virginia, Inc., in
its capacity as sole managing member of PNGI
Charles Town Gaming Limited Liability Company
/s/ HAROLD CRAMER
------------------------------------------- Director June 22, 2001
Harold Cramer
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
PNGI POCONO, INC.
By: /s/ RICHARD E. ORBANN
-----------------------------------------
Richard E. Orbann
PRESIDENT AND SOLE DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by PNGI
Pocono, Inc., a Delaware corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ RICHARD E. ORBANN
------------------------------------------- President and Sole Director June 22, 2001
Richard E. Orbann (Principal Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
STERLING AVIATION INC.
By: /s/ PETER M. CARLINO
-----------------------------------------
Peter M. Carlino
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Sterling
Aviation Inc., a Delaware corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ PETER M. CARLINO
------------------------------------------- President and Director June 22, 2001
Peter M. Carlino (Principal Executive Officer)
/s/ ROBERT S. IPPOLITO Secretary and Treasurer
------------------------------------------- (Principal Financial and June 22, 2001
Robert S. Ippolito Accounting Officer)
/s/ HAROLD CRAMER
------------------------------------------- Director June 22, 2001
Harold Cramer
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
TENNESSEE DOWNS, INC.
By: /s/ RICHARD E. ORBANN
-----------------------------------------
Richard E. Orbann
PRESIDENT AND DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Tennessee
Downs, Inc., a Tennessee corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
President and Director
/s/ RICHARD E. ORBANN (Principal Executive,
------------------------------------------- Financial and Accounting June 22, 2001
Richard E. Orbann Officer)
/s/ PETER M. CARLINO Director
------------------------------------------- June 22, 2001
Peter M. Carlino
/s/ ROBERT S. IPPOLITO Secretary and Director
------------------------------------------- June 22, 2001
Robert S. Ippolito
/s/ JOSEPH A. LASHINGER, JR. Vice President and Director
------------------------------------------- June 22, 2001
Joseph A. Lashinger, Jr.
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Wyomissing, Commonwealth of Pennsylvania on June 22, 2001.
WILKES BARRE DOWNS, INC.
By: /s/ ROBERT E. ABRAHAM
-----------------------------------------
Robert E. Abraham
PRESIDENT, SECRETARY, TREASURER AND SOLE
DIRECTOR
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter M. Carlino and Robert S. Ippolito his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all registration statements filed by Wilkes Barre
Downs, Inc., a Pennsylvania corporation, in which the undersigned holds offices,
and any and all amendments to this Registration Statement, and including any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act with exhibits thereto and other
documents in connection therewith, and to file any and all of the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents or any of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
President, Secretary, Treasurer
/s/ ROBERT E. ABRAHAM and Sole Director (Principal
------------------------------------------- Executive, Financial and June 22, 2001
Robert E. Abraham Accounting Officer)
II-29
PENN NATIONAL GAMING, INC.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
1.1* Form of Underwriting Agreement.
3.1+ Amended and Restated Articles of Incorporation of Penn
National Gaming, Inc., filed with the Pennsylvania
Department of State on October 15, 1996.
3.2+ Articles of Amendment to the Amended and Restated Articles
of Incorporation of Penn National Gaming, Inc., filed with
the Pennsylvania Department of State on November 13, 1996.
3.3+ Statement with respect to shares of Series A Preferred Stock
of Penn National Gaming, Inc., filed with the Pennsylvania
Department of State on March 16, 1999.
3.4 Bylaws of Penn National Gaming, Inc. (Incorporated by
reference from Exhibit No. 3.2 to the Registrant's
registration statement on Form S-1, File #33-77758, dated
May 26, 1994).
3.5* Form of any statement with respect to any preferred stock
issued hereunder.
4.1 Rights Agreement dated as of March 2, 1999, between Penn
National Gaming, Inc. and Continental Stock Transfer and
Trust Company (Incorporated by reference as an exhibit to
the Registrant's Current Report on Form 8-K, dated
March 17, 1999).
4.2* Form of Indenture.
5.1* Opinion of Morgan, Lewis & Bockius LLP.
12.1+ Statements re: computation of ratios.
23.1+ Consent of BDO Seidman LLP.
23.2+ Consent of Arthur Andersen LLP.
23.3+ Consent of PricewaterhouseCoopers LLP.
24.1+ Powers of Attorney (included on the signature pages of this
Registration Statement).
25.1** Statement of Eligibility of Trustee on Form T-1.
- ------------------------
+ Filed herewith.
* To be filed by amendment or as an exhibit to a document to be incorporated
by reference herein in connection with the offered securities.
** To be filed pursuant to section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PENN NATIONAL GAMING, INC.
In compliance with the provisions of Section 1915 (relating to Articles of
Amendment) of the Pennsylvania Business Corporation Law of 1988, as amended, the
undersigned business corporation, desiring to amend and restate in their
entirety its Articles of Incorporation, hereby states that:
1. The name of the Corporation is: Penn National Gaming, Inc.
2. The Corporation was incorporated under the provisions of the Act of May
5, 1933, as amended.
3. The address of the Corporation's registered office in this Commonwealth
is: Wyomissing Professional Center, 825 Berkshire Boulevard, Suite 203,
Wyomissing, Berks County, Pennsylvania 19610.
4. The aggregate number of shares which this Corporation shall have
authority to issue is:
(a) Ten Million (10,000,000) shares of Common Stock with a par value
of $.01 per share; and
(b) (i) One Million (1,000,000) shares of Preferred Stock with a par
value of $.01 per share.
(ii) The Preferred Stock may be issued from time to time in one
or more series with such distinctive designations as may be stated in
the resolution or resolutions providing for the issue of such stock
adopted, from time to time, by the Board of Directors of this
Corporation. The resolution or resolutions providing for the issue of
shares of a particular series shall fix, subject to applicable laws
and the provisions hereof, the designation, rights, preferences and
limitations of the shares of each such series. The authority of the
Board of Directors with respect to each series shall include, but not
be limited to, determination of the following:
(A) The number of shares constituting such series, including
the authority to increase or decrease such number, and the
distinctive designation of such series;
(B) The dividend rate of the shares of such series, whether
the dividends shall be cumulative and, if so, the date from which
they shall be cumulative, and the relative rights of priority, if
any, of payment of dividends on shares of such series;
(C) The right, if any, of the Corporation to redeem shares
of such series and the terms and conditions of such redemption;
(D) The rights of the shares in case of a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of
payment of shares of such series;
(E) The voting power, if any, of such series and the terms
and conditions under which such voting power may be exercised;
(F) The obligation, if any, of the Corporation to retire
shares of such series pursuant to a retirement or sinking fund or
funds of a similar nature or otherwise and the terms and
conditions of such obligations;
(G) The terms and conditions, if any, upon which shares of
such series shall be convertible into or exchangeable for shares
of stock of any other class or classes, including the price or
prices or the rate or rates of conversion or exchange and the
terms of adjustment if any; and
(H) Any other rights, preferences or limitations of the
shares of such series.
5. In all elections for Directors, each shareholder entitled to vote shall
be entitled to only one vote for each share held, it being intended hereby to
deny to shareholders of this Corporation the right of cumulative voting in the
election of Directors.
6. The amended and restated Articles of Incorporation of this corporation
as set forth herein shall be effective upon the filing of these Amended and
Restated Articles of Incorporation with the Department of State.
7. The amended and restated Articles of Incorporation were adopted by the
shareholders of this corporation pursuant to 15 Pa. C.S.ss.1914 (a)(b).
8. The amended and restated Articles of Incorporation adopted by the
Corporation is set forth in full as follows:
RESOLVED, that the Articles of Incorporation of this Corporation be, and
they hereby are, amended and restated, in their entirety, to read as follows:
1. The name of the Corporation is: Penn National Gaming, Inc.
2. The Corporation was incorporated under the provisions of the Act of May
5, 1933, as amended.
3. The address of the Corporation's registered office in this Commonwealth
is: Wyomissing Professional Center, 825 Berkshire Boulevard, Suite 203,
Wyomissing, Berks County, Pennsylvania 19610.
4. The aggregate number of shares which this Corporation shall have
authority to issue is:
2
(a) Ten Million (10,000,000) shares of Common Stock with a par value
of $.01 per share; and
(b) (i) One Million (1,000,000) shares of Preferred Stock with a par
value of $.01 per share.
(ii) The Preferred Stock may be issued from time to time in one
or more series with such distinctive designations as may be stated in
the resolution or resolutions providing for the issue of such stock
adopted, from time to time, by the Board of Directors of this
Corporation. The resolution or resolutions providing for the issue of
shares of a particular series shall fix, subject to applicable laws
and the provisions hereof, the designation, rights, preferences and
limitations of the shares of each such series. The authority of the
Board of Directors with respect to each series shall include, but not
be limited to, determination of the following:
(A) The number of shares constituting such series, including
the authority to increase or decrease such number, and the
distinctive designation of such series;
(B) The dividend rate of the shares of such series, whether
the dividends shall be cumulative and, if so, the date from which
they shall be cumulative, and the relative rights of priority, if
any, of payment of dividends on shares of such series;
(C) The right, if any, of the Corporation to redeem shares
of such series and the terms and conditions of such redemption;
(D) The rights of the shares in case of a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of
payment of shares of such series;
(E) The voting power, if any, of such series and the terms
and conditions under which such voting power may be exercised;
(F) The obligation, if any, of the Corporation to retire
shares of such series pursuant to a retirement or sinking fund or
funds of a similar nature or otherwise and the terms and
conditions of such obligations;
(G) The terms and conditions, if any, upon which shares of
such series shall be convertible into or exchangeable for shares
of stock of any other class or classes, including the price or
prices or the rate or rates of conversion or exchange and the
terms of adjustment if any; and
(H) Any other rights, preferences or limitations of the
shares of such series.
5. In all elections for Directors, each shareholder entitled to vote shall
be entitled to only one vote for each share held, it being intended hereby to
deny to shareholders of this Corporation the right of cumulative voting in the
election of Directors.
3
6. (a) Except as otherwise fixed by or pursuant to the provisions of
Article 6 hereof relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional directors under specified circumstances, the
number of Directors of the Corporation shall be fixed from time to time by or
pursuant to the By-Laws of the Corporation. The Directors, other than those who
may be elected by the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, as shall be provided in
the manner specified in the By-Laws of the Corporation, one class to be
originally elected for a term expiring at the annual meeting of shareholders to
be held in 1997, another class to be elected for a term expiring at the annual
meeting of shareholders to be held in 1998, and another class to be originally
elected for a term expiring at the annual meeting of shareholders to be held in
1999, with each director to hold office until his or her successors of the class
of Directors whose term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of shareholders held in the third year
following the year of election.
(b) Advance notice of shareholder nominations for the election of
Directors and advance notice of business to be brought by shareholders
before an annual meeting shall be given in the manner provided in the
By-Laws of the Corporation.
(c) Except as otherwise provided for or fixed by or pursuant to the
provisions of Article 6 hereof relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, newly created directorships resulting from any increase in
the number of Directors and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other case
shall be filled only by the affirmative vote of a majority of the remaining
Directors then in office, even though less than a quorum of the Board of
Directors. Any Directors elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy occurred
and until such Director's successor shall have been duly elected and
qualified. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
(d) Subject to the rights of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation to
elect Directors under specified circumstances, any Director may be removed
from office, with or without cause, only by the affirmative vote of the
holders of 75% of the voting power of all shares of the Corporation
entitled to vote generally in the election of Directors, voting together as
a single class.
(e) Notwithstanding anything contained in these Amended and Restated
Articles of Incorporation to the contrary, the affirmative vote of the
holders of at least 75% of the voting power of all shares of the
Corporation entitled to vote generally in the election of Directors voting
together as a single class, shall be required to alter, amend or repeal
this Article 6.
4
IN TESTIMONY WHEREOF, the undersigned officers of this Corporation have
executed and sealed these Amended and Restated Articles of Incorporation this
8th day of May, 1996.
PENN NATIONAL GAMING, INC.
By: /s/ Peter M. Carlino
------------------------
Name: Peter M. Carlino
Title: President
Attest: /s/ Robert S. Ippolito
--------------------------
Name: Robert S. Ippolito
Title: Secretary
5
EXHIBIT 3.2
Microfilm No. Filed with the Department of State on
---------------------- NOV. 13 1996
------------------------------------
Entity No.
-------------------------- ------------------------------------
Secretary of the Commonwealth
ARTICLES OF AMENDMENT - DOMESTIC BUSINSS CORPORATION
DSCS: 15 - 1915 (REV. 91)
In compliance with the requirements of 15 Pa. C.S. Section 1915 (relating
to Articles of Amendment), the undersigned business corporation, desiring to
amend its Articles, hereby states that:
1. The name of the corporation is: Penn National Gaming, Inc.
2. The address of this corporation's current registered office in this
Commonwealth and the county of venue is: Wyomissing Professional Center, 825
Berkshire Boulevard, Suite 203, Wyomissing, Berks County, Pennsylvania 19610.
3. The statute by or under which it was incorporated is: Pennsylvania
Business Corporation Law, as amended.
4. The date of its incorporation is: 12/16/82
5. The amendment shall be effective upon filing these Articles of Amendment
in the Department of State.
6. A resolution setting forth the amendment was duly adopted by the Board
of Directors at a meeting of such Board pursuant to 15 Pa. C.S. Sections 1914(c)
and 1912.
7. The amendment adopted by the corporation, set forth in full, is as
follows:
Article 4, subparagraph (a), of the Articles of Incorporation of this
corporation be and it hereby is, amended to read as follows:
"4. The aggregate number of shares which this Corporation shall
have authority to issue is:
(a) Twenty Million (20,000,000) shares of Common Stock with
par value of $.01 per share; and"
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer thereof this 13 day of
November, 1996.
PENN NATIONAL GAMING, INC.
By: /s/ Peter M. Carlino
-------------------------
Peter M. Carlino
Chairman of the Board and
Chief Executive Officer
EXHIBIT 3.3
STATEMENT WITH RESPECT TO SHARES
OF SERIES A PREFERRED STOCK
OF
PENN NATIONAL GAMING, INC.
In compliance with the requirements of Section 1522 of the Business
Corporation Law of 1988, P.L. 1444, No. 177 (15 Pa. Cons. Stat Section 1522(c)),
the undersigned company, desiring to state the voting rights, designations,
preferences, qualifications, privileges, limitations, options, conversion
rights, and other special rights, if any, of a class or a series of a class of
its shares, HEREBY CERTIFIES THAT:
(1) The name of the corporation is Penn National Gaming, Inc. (the
"Company");
(2) The resolution establishing and designating the class or series of
shares and fixing and determining the relative rights and preferences thereof is
set forth in full in Exhibit 1 attached hereto and made a part hereof;
(3) The aggregate number of shares of such class or series established and
designated by (i) such resolution, (ii) all prior statements, if any, filed
under Section 1522 of the Business Corporation Law of 1988 or corresponding
provisions of prior law with respect thereto, and (iii) any other provision of
the Articles of Incorporation of the Company is 400,000 shares; and
(4) The resolution was adopted by the Board of Directors of the Company at
a duly called meeting held on May 20, 1998.
IN WITNESS WHEREOF, Penn National Gaming has caused this statement to be
duly executed in its corporate name on this 2nd day of March, 1999.
Attest: PENN NATIONAL GAMING, INC.
/s/ Robert S. Ippolito By: /s/ Peter M. Carlino
- ---------------------- -----------------------------
Name: Peter M. Carlino
Title: Chairman and Chief
Executive Officer
[Corporate Seal]
EXHIBIT 1
PENN NATIONAL GAMING, INC.
Secretary's Certificate
The undersigned, Robert S. Ippolito, hereby certifies that he is the duly
elected, qualified and acting Secretary, Treasurer and Chief Financial Officer
of PENN NATIONAL GAMING, INC., a Pennsylvania corporation (the "Company"), and
that what follows is a true and correct copy of resolutions duly adopted by the
Board of Directors of the Company at a meeting duly held on May 20, 1998, which
resolutions have not been altered, amended, modified or rescinded and remain in
full force and effect on the date hereof:
WHEREAS, the Board of Directors deems it desirable and in the best
interests of the Company and its shareholders that steps be taken to
preserve for shareholders the long-term value of the Company in the event
of an attempted takeover of the Company; and
WHEREAS, the Board of Directors believes that a dividend to holders of
the Company's Common Stock, par value $.01 per share (the "Common Shares"),
of rights to purchase fractional shares of Series A Preferred Stock (the
"Preferred Stock"), on the terms and subject to the conditions hereinafter
provided, is in the best interests of the Company and will contribute to
the preservation of the Company's long-term value for its shareholders; and
in arriving at this belief, the Board also considered the effects upon
employees, suppliers and customers of the Company, and upon communities in
which offices or other establishments of the Company are located and all
other pertinent factors; and
WHEREAS, the Board of Directors wishes to create the Preferred Stock,
and designate the number of shares thereof and the voting powers,
preferences, rights and restrictions thereof.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority
expressly vested in the Board of Directors of Penn National Gaming, Inc.
(the "Company") by Article 4(b) of the Articles of Incorporation of the
Company, the Board of Directors hereby creates the first series of
Preferred Stock, par value $0.01 per share, which shall consist of 400,000
shares and shall be designated as the Preferred Stock, and fixes and
determines the voting rights, designations,
preferences, qualifications, privileges, limitations, restrictions,
options, conversion rights and other special or relative rights thereof as
follows:
Section 1. DIVIDENDS AND DISTRIBUTIONS:
(a) The rate of dividends payable per share of Preferred Stock on
the first day of March, June, September and December in each year or
such other quarterly payment date as shall be specified by the Board
of Directors (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of the Preferred Stock, shall be (rounded to the nearest cent)
equal to the product of 100 multiplied by the aggregate per share
amount of all cash dividends, and the product of 100 multiplied by the
aggregate per share amount (payable in cash, based upon the fair
market value at the time the non-cash dividend or other distribution
is declared or paid as determined in good faith by the Board of
Directors) of all non-cash dividends or other distributions other than
a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, $.01 par value, of the Company since the
immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of the Preferred Stock,
subject to the provision for adjustment hereinafter set forth.
Dividends on the Preferred Stock shall be paid out of funds legally
available for such purpose. In the event the Company shall at any time
after May 20, 1998 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares,
then in each such case the amounts to which holders of Preferred Stock
were entitled immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying each such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on
outstanding Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of
Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding.
Section 2. VOTING RIGHTS. In addition to any other voting rights
required by law, the holders of Preferred Stock shall have the
following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the Shareholders of the
Company. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock
into a smaller number of shares, then in each such case the number of
votes per share to which holders of Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) In the event that dividends on the Preferred Stock shall be
in arrears to an amount equal to six full quarterly dividends thereon,
the holders of such Preferred Stock shall become entitled to the
extent hereinafter provided to vote noncumulatively at all elections
of directors of the Company, and to receive notice of all
Shareholders' meetings to be held for such purpose. At such meetings,
to the extent that directors are being elected, the holders of such
Preferred Stock voting as a class shall be entitled to elect two
members of the Board of Directors of the Company; and all other
directors of the Company shall be elected by all Shareholders of the
Company entitled to vote in the election of directors. Such voting
rights of the holders of such Preferred Stock shall continue until all
accumulated and unpaid dividends thereon shall have been paid or funds
sufficient therefor set aside, whereupon all such voting rights of the
holders of shares of such series shall cease, subject to being again
revived from time to time upon the reoccurrence of the conditions
above described as giving rise thereto.
At any time when such right to elect directors separately as a
class shall have so vested, the Company may, and upon the written
request of the holders of record of not less than 20% of the then
outstanding total number of shares of all the Preferred Stock having
the right to elect directors in such circumstances shall, call a
special meeting of holders of such Preferred Stock for the election of
directors. In the case of such a written request, such special meeting
shall be held within 90 days after the delivery of such request, and,
in either case, at the place and upon the notice provided by law and
in the By-laws of the Company; provided that the Company shall not be
required to call such a special meeting if such request is received
less than 120 days before the date fixed for the next ensuing annual
or special meeting of Shareholders of the Company. Upon the mailing of
the notice of such special meeting to the holders of such Preferred
Stock, or, if no such meeting be held; then upon the mailing of the
notice of the next annual or special meeting of Shareholders for the
election of directors, the number of directors of the Company shall,
ipso facto, be increased to the extent, but only to the extent,
necessary to provide sufficient vacancies to enable the holders of
such Preferred
Stock to elect the two directors hereinabove provided for, and all
such vacancies shall be filled only by vote of the holders of such
Preferred Stock as hereinabove provided. Whenever the number of
directors of the Company shall have been increased, the number as so
increased may thereafter be further increased or decreased in such
manner as may be permitted by the By-laws and without the vote of the
holders of Preferred Stock, provided that no such action shall impair
the right of the holders of Preferred Stock to elect and to be
represented by two directors as herein provided.
As long as the holders of Preferred Stock are entitled hereunder
to voting rights, any vacancy in the Board of Directors caused by the
death or resignation of any director elected by the holders of
Preferred Stock, shall, until the next meeting of Shareholders for the
election of directors, in each case be filled by the remaining
director elected by the holders of Preferred Stock having the right to
elect directors in such circumstances.
Upon termination of the voting rights of the holders of any
series of Preferred Stock the terms of office of all persons who shall
have been elected directors of the Company by vote of the holders of
Preferred Stock or by a director elected by such holders shall
forthwith terminate.
(c) Except as otherwise provided herein, in the Articles of
Incorporation of the Company, or by law, the holders of Preferred
Stock and the holders of Common Stock (and the holders of shares of
any other series or class entitled to vote thereon) shall vote
together as one class on all matters submitted to a vote of
Shareholders of the Company.
Section 3. REACQUIRED SHARES. Any Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued
Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the
Board of Directors.
Section 4. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event
of any voluntary or involuntary liquidation, dissolution or winding up
of the Company, the holders of Preferred Stock shall be entitled to
receive the greater of (a) $1.00 per share, plus accrued dividends to
the date of distribution, whether or not earned or declared, or (b) an
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock. In the event the Company shall
at any time after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock
into a smaller number of shares, then in each such case the amount to
which holders of Preferred Stock were entitled immediately prior to
such event pursuant to clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately before such event.
Section 5. CONSOLIDATION, MERGER, ETC. In case the Company shall
enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed into
other capital stock or securities, cash and/or any other property,
then in any such case the Preferred Stock shall at the same time be
similarly exchanged for, or changed into an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of capital stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In
the event the Company shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock,
or (iii) combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 6. NO REDEMPTION. The Preferred Stock shall not be
redeemable.
Section 7. FRACTIONAL SHARES. Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of Preferred Stock.
RESOLVED FURTHER, that the Board of Directors hereby declares that a
dividend of one right (a "Right") for each Common Share be paid on March
19, 1999 to shareholders of record of the Common Shares issued and
outstanding at the close of business on such date, each Right representing
the right to purchase one-hundredth of a Preferred Stock (a "Preferred
Stock Fraction") upon the terms and subject to the conditions set forth in
the form of Rights Agreement between the Company and Continental Stock
Transfer and Trust Company as Rights Agent presented to this meeting (the
"Rights Agreement"), which agreement is hereby approved in all respects.
RESOLVED FURTHER, that the exercise price of the Rights shall be
$40.00 per Preferred Stock Fraction and that the redemption price therefor
shall be $.01 per Right, in each case, subject to the adjustments set forth
in the Rights Agreement.
RESOLVED FURTHER, that the President or Chief Executive Officer of the
Company, alone or together with the Secretary or Assistant Secretary of the
Company be, and each of them hereby is, authorized, empowered and directed,
for and on behalf of the Company, to execute the Rights Agreement, with
such modifications as the officers executing the same shall approve, and to
deliver the same to the Rights Agent thereunder, such execution and
delivery conclusively to evidence the due authorization and approval
thereof by the Company.
RESOLVED FURTHER, that certificates evidencing the Rights (the "Rights
Certificates") shall be substantially in the form set forth in the Rights
Agreement and shall be issued and delivered as provided therein.
RESOLVED FURTHER, that the Rights Certificates shall be signed by the
Chairman of the Board, the President or any Vice President and by the
Secretary or any Assistant Secretary of the Company (collectively, the
"Proper Officers") under the corporate seal of the Company (which may be in
the form of a facsimile of the seal of the Company), provided that the
signatures of any of said officers of the Company may, but need not be, a
facsimile signature imprinted or otherwise reproduced on the Rights
Certificates, and that the Company adopts for such purpose the facsimile
signature of the present or any future Chairman of the Board, President,
Vice President, Secretary and Assistant Secretary of the Company,
notwithstanding the fact that at the time the Rights Certificates shall be
authenticated and delivered or disposed of he shall have ceased to be such
officer.
RESOLVED FURTHER, that the Proper Officers be, and each of them hereby
is, authorized, empowered and directed, to execute for and on behalf of the
Company and under its corporate seal (which may be in the form of a
facsimile of the seal of the Company), Rights Certificates issued to
replace lost, stolen, mutilated or destroyed Rights Certificates, and such
Rights Certificates as may be required for exchange, substitution or
transfer as provided in the Rights Agreement in the manner and form to be
required in, or contemplated by, the Rights Agreement.
RESOLVED FURTHER, that the Rights Certificates shall be manually
countersigned by the Rights Agent and books for the registration and
transfer of the Rights Certificates shall be maintained by the Rights Agent
as provided for in the Rights Agreement.
RESOLVED FURTHER, that 400,000 Preferred Stock be, and hereby is,
initially reserved for issuance upon exercise of the Rights, such number to
be subject to adjustment from time to time in accordance with the Rights
Agreement.
RESOLVED FURTHER, that Continental Stock Transfer and Trust Company
(the "Bank") be, and it hereby is, appointed Transfer Agent and Registrar
for the Preferred Stock.
RESOLVED FURTHER, that the Bank be, and it hereby is, appointed Rights
Agent under the Rights Agreement, and that upon presentation to it of
Rights Certificates for exercise in accordance with the Rights Agreement,
the Bank is authorized, as Transfer Agent and Registrar for the Preferred
Stock, to issue, countersign, register and deliver the Preferred Stock
Fractions issuable upon such exercise.
RESOLVED FURTHER, that the Proper Officers be, and each of them hereby
is, authorized, empowered and directed, for and on behalf of the Company,
to take all such actions and to execute all such documents as they may deem
necessary or appropriate in connection with the issuance of the Rights and
the Preferred Stock or other securities issuable upon exercise of the
Rights in order to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities Exchange Act of 1934, as amended.
RESOLVED FURTHER, that the Secretary of the Company be and he hereby
is appointed as agent for service of the Company with respect to said
registration statement for the Preferred Stock or other securities, and any
amendments or supplements, with all the powers and functions specified in
the General Rules and Regulations of the Securities and Exchange Commission
under the Securities Act.
RESOLVED FURTHER, that the Proper Officers be, and each of them hereby
is, authorized, empowered and directed, for and on behalf of the Company,
to execute and file such application or applications, and amendments and
supplements thereto, and take such other action as may be necessary to
qualify the Rights (and, if in the judgment of such officers it is
appropriate to do so, the Preferred Stock or other securities issuable upon
exercise thereof) for trading on NASDAQ or any stock exchange or national
market system deemed appropriate by such officers of the Company or as is
required by the Rights Agreement, and that the proper officers of the
Company be, and each of them hereby is, authorized to appear before the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. and any stock exchange, and to execute such papers and
agreements as may be necessary to conform with the requirements of any such
body and to effectuate such qualification and registration.
RESOLVED FURTHER, that as long as the Rights are attached to the
Common Shares as provided in the Rights Agreement, one Right shall be
delivered with each Common Share that shall become outstanding after March
19, 1999.
RESOLVED FURTHER, in connection with the issuance or sale of Common
Shares following the Distribution Date (as defined in the Rights Agreement)
and prior to the Expiration Date (as is defined in the Rights Agreement),
the Company shall, with respect to Common Shares so issued or sold pursuant
to the exercise of stock options or under any employee plan or arrangement,
or upon the exercise, conversion or exchange of securities issued by the
Company prior to the Distribution Date, issue Rights Certificates
representing the appropriate number of Rights in connection with such
issuance or sale, as provided in the Rights Agreement.
RESOLVED FURTHER, that the Board of Directors deems it desirable and
in the best interests of the Company that the Preferred Stock issuable upon
exercise of the Rights be qualified or registered for sale in various
jurisdictions; that the Proper Officers be, and each of them hereby is,
authorized, empowered and directed, for and on behalf of the Company, to
determine the jurisdictions in which appropriate action shall be taken to
qualify or register for sale all or such part of the Preferred Stock
issuable upon exercise of the Rights as said officers may deem advisable or
as is required by the Rights Agreement; that the Proper Officers be, and
each of them hereby is, authorized, empowered and directed, for and on
behalf of the Company, to perform any and all such acts as they may deem
necessary or advisable in order to comply with the applicable laws of any
such jurisdictions, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to,
applications, reports, surety bonds, irrevocable consents and appointments
of attorneys for service of process; and the execution by such officers of
any such papers or documents or the doing by them of any act in connection
with the foregoing matters shall conclusively establish their authority
therefor and the approval and ratification by the Company of the papers and
documents so executed and the action so taken.
RESOLVED FURTHER, that the Board of Directors hereby adopts, as if
expressly set forth herein, the form of any resolution required by any
authority to be filed in connection with any applications, consents to
service, issuer's covenants or other documents if (i) in the opinion of the
officers of the Company executing the same, the adoption of such
resolutions is necessary or desirable (such execution or delivery being
deemed conclusive evidence of such determination of such necessity or
desirability) and (ii) the Secretary or an Assistant Secretary of the
Company evidences such adoption by inserting in the minutes of this meeting
copies of such resolutions, which will thereupon be deemed to be adopted by
the Board of Directors with the same force and effect as if presented at
this meeting.
RESOLVED FURTHER, that the Proper Officers be, and each of them hereby
is, authorized, empowered and directed, for and on behalf of the Company,
to execute and deliver any and all certificates, agreements and other
documents, take any and all steps and do any and all things which they may
deem necessary or advisable (such execution or delivery being deemed
conclusive evidence of
such determination of such necessity or desirability) in order to
effectuate the purposes of each and all of the foregoing resolutions.
RESOLVED FURTHER, that any actions taken by the proper officers prior
to the date of this meeting that are within the authority conferred hereby
are hereby ratified, confirmed and approved in all respects as the act and
deed of the Company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Company this 2nd day of March, 1999.
[SEAL]
/s/ Robert S. Ippolito
----------------------
Robert S. Ippolito
Secretary, Treasurer and Chief
Financial Officer
EXHIBIT 12.1
PENN NATIONAL GAMING, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIO)
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------------------------------- -------------------
1996 1997 1998 1999 2000 2000 2001
---- ---- ---- ---- ---- ---- ----
Earnings, as defined:
Income from continuing operations
before provision for income taxes $ 9,304 $ 6,077 $12,022 $10,510 $28,712 $ 5,763 $ 7,227
Add:
Interest expense 506 4,591 8,374 11,828 22,843 3,237 9,487
Estimate of interest included in
rental expense 334 269 390 524 1,178 571 132
Amortization of capitalized debt
costs and premium on debt 34 296 430 946 1,555 466 266
------- ------- ------- ------- ------- ------- -------
Earnings, as defined $10,178 $11,233 $21,216 $23,808 $54,288 $10,037 $17,112
======= ======= ======= ======= ======= ======= =======
Fixed Charges:
Interest expense $ 506 $ 4,591 $ 8,374 $11,828 $22,843 $ 3,237 $ 9,487
Estimate of interest included in
rental expense 334 269 390 524 1,178 571 132
Amortization of capitalized debt costs
and premium on debt 34 296 430 946 1,555 466 266
Capitalized interest -- -- -- -- 229 28 --
------- ------- ------- ------- ------- ------- -------
Total fixed charges $ 874 $ 5,156 $ 9,194 $13,298 $25,805 $ 4,302 $ 9,885
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges 11.7 2.2 2.3 1.8 2.1 2.3 1.7
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Penn National Gaming, Inc. and Subsidiaries
Wyomissing, PA
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
March 12, 2001 relating to the consolidated financial statements of Penn
National Gaming, Inc.'s and subsidiaries for the year ended December 31, 2000
appearing in the Company's Annual Report on Form 10-K.
We also consent to the reference to us under the caption "Experts" in the
registration statement.
/s/ BDO Seidman, LLP
Philadelphia, PA
June 22, 2001
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 8, 2000,
relating to the financial statements of Mardi Gras Casino Corp. and our report
dated February 8, 2000 relating to the financial statements of Mississippi-I
Gaming, L.P., which appear in Penn National Gaming, Inc.'s Current Report on
Form 8-K/A filed on October 20, 2000 and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
New Orleans, Louisiana
June 22, 2001
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Penn National Gaming, Inc. of our report dated
February 2, 2001 relating to the financial statements of CRC Holdings,
Inc.-Gaming Division, which appears in Penn National Gaming, Inc.'s Current
Report on Form 8-K/A filed on June 8, 2001. We also consent to the reference
to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Miami, FL
June 22, 2001
