Exhibit 7.2
STOCK PURCHASE AGREEMENT
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THIS AGREEMENT made as of this 28th day of July, 2000, between John F.
Fisbeck, David B. McLane and Carter M. Fortune (hereinafter referred to
individually as a "Buyer" and collectively as the "Buyers"), and Shamrock
Holdings Group, Inc. (hereinafter referred to as "Shamrock") and American Gaming
& Entertainment, Ltd. ("AGEL") which is joining as a party to this Agreement
only for the purpose of complying with Sections 3 and 4 hereof.
Recitals
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A. The substantively consolidated bankruptcy estate of The Bennett Funding,
Inc., et al. (the "Estate") and Shamrock together own 5,923,454 shares of
voting, $0.01 par value common stock of AGEL, 55,982.61 shares of Series A
Preferred Stock (which is convertible into 1,399,565 shares of common stock) and
4,000 shares of each Series C, D and E Preferred Stock (which are convertible as
of July 21, 2000 into 360,588,361 shares of common stock pursuant to letter
agreement attached hereto as Exhibit "A"), as their interests may appear;
B. The Buyers desire to purchase all of the stock (on a fully converted
based) owned by Shamrock, upon the terms and conditions hereinafter set forth
(the "Stock").
C. Shamrock is willing to sell the Stock to the Buyers on the terms and
conditions hereinafter set forth.
D. The parties hereto desire to establish their mutual rights and
obligations under this Agreement.
NOW, THEREFORE, in consideration of mutual covenants contained herein and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Purchase Price. The purchase price for the sale of the Stock to the
Buyers shall be $1,800.00 (the "Purchase Price") payable in accordance with the
terms of this Agreement.
2. Closing Matters. The closing (the "Closing") on the transactions
contemplated by this Agreement shall take place on or before August 31, 2000
(the "Closing Date") at a time and location mutually acceptable to the parties.
At the Closing, Shamrock shall deliver to the Buyers the certificates in
Shamrock's possession representing a portion of the Stock and an affidavit of
lost certificate(s) with respect to the certificates not in Shamrock's
possession, and all certificates in Shamrock's possession shall be duly endorsed
on the reverse side thereof by a duly authorized officer. The Buyers shall
deposit with the Escrow Agent cash in an amount equal to the Purchase Price
pursuant to the Escrow Agreement.
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3. Post Closing Matters. Immediately following Closing, AGEL's Board of
Directors shall be expanded to not less than three members (as determined by the
Buyers) and the Board of Directors shall fill said vacancies with individuals
designated by the Buyers.
4. Right of Setoff. The Escrow Amount shall be reduced and paid to Buyers
as a result of any damages asserted against, imposed upon or incurred by AGEL or
the Buyers, directly or indirectly, by reason of or resulting from any of the
following occurrences:
4.01 Other than as set forth in the Exceptions Schedule which is
attached hereto as Exhibit "B", AGEL is a party to any contract, lease,
agreement or other undertaking. Except as set forth in the Exceptions
Schedule, any party to any contract, lease, agreement or other
undertaking with AGEL has any claim against AGEL.
4.02 Except for the requirements of applicable federal and state
securities laws and the Bankruptcy Court Approval and the approval of
the Indiana Gaming Commission, required, a consent or approval of, or
filing or registration with, any governmental or regulatory authority is
required in connection with the performance of the terms of this
Agreement.
4.03 Except as disclosed in the Exceptions Schedule, any of
AGEL's tax returns and reports required by law to be filed have not been
duly filed, and any taxes, assessments, fees and other governmental
charges have not been paid or adequately reserved against.
4.04 Except as disclosed in the Exceptions Schedule:
(a) there is any action, proceeding, claim or
investigation pending against AGEL or to which any of its assets
or properties are subject before any court or any governmental
department, commission, board, bureau, agency or instrumentality;
or
(b) there is any outstanding order, writ, injunction or
decree of any court, governmental department, commission, board,
bureau, agency or instrumentality, or any arbitration award
against AGEL.
4.05 AGEL's authorized capital stock exceeds 3,000,000,000 shares
of common stock $.01 par value or 1,000,000 shares of preferred stock,
of which more than 12,561,750 shares (pre-conversion) of common stock
are issued and outstanding or of which more than 67,982.61 shares
(pre-conversion) of preferred stock are issued and outstanding. Except
as set forth in the Exceptions Schedule, there are any outstanding
options, warrants or other rights to subscribe for, purchase or receive
shares of AGEL common stock or preferred stock or any other securities
convertible into AGEL common stock or preferred stock.
4.06 Except as set forth in the Exceptions Schedule, any of
AGEL's current or former officers, directors or employees has any claim
against it except for salaries or
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other ordinary expenses, or AGEL is obligated to any of such persons
in any way or for any amount except for salaries, wages or ordinary
expenses. One-half of the $125,000 severance payment payable on
termination of the employment of J. Douglas Wellington ("Wellington")
will be satisfied by Shamrock on January 31, 2001, from the reserve
account which was established by Shamrock for said severance payment,
subject to the terms of the Employment Agreement between AGEL and
Wellington dated as of December 31, 1999 (the "Wellington Employment
Agreement"). Buyers agree to cause AGEL to pay the other half of said
severance payment on January 31, 2001, which amount shall not be paid
out of the Escrow Amount (as defined below) but rather from other
post-closing funds of AGEL. AGEL will pay to Wellington the remainder
of his base salary under the Wellington Employment Agreement in a lump
sum payment on September 30, 2000, from the Escrow Amount. The Buyers
agree to cause AGEL to pay to Wellington on September 30, 2000, $1,500
for the car and rent allowance which amount shall not be paid out of
the Escrow Amount but rather from post-closing funds of AGEL.
4.07 Except as set forth in the Exceptions Schedule, any agent,
broker, investment banker, person or firm acting on behalf of AGEL is or
will be entitled to any broker's or finder's fee or any other commission
or fee, directly or indirectly, in connection with any of the
transactions contemplated hereby.
4.08 AGEL owns stock or securities evidencing an ownership
interest in any corporation, business trust, firm or business which may
be considered a subsidiary, except as set forth on the Exceptions
Schedule.
4.09 At Closing, AGEL has cash in an amount of less than
approximately $150,000 or has any liabilities, contingent or otherwise,
other than as set forth on the Exceptions Schedule.
4.10 Shamrock has not exercised all conversion rights with
respect to the preferred stock held by it or has not taken all actions
necessary to cause the transfer agent for AGEL to issue the 5,823,019
shares of common stock owned by Shamrock either directly or as a result
of the conversion.
4.11 AGEL shall not have complied with the Letter Agreement (the
"Letter Agreement") dated November 23, 1999 between AGEL and Shamrock
except as modified by the terms of this Agreement.
5. Escrow Agreement.
5.01 At the Closing, pursuant to the terms and subject to the
conditions of that certain Escrow Agreement by and between the Buyers,
Shamrock, Richard C. Breeden, Trustee of the Estate, AGEL and the Escrow
Agent, substantially in the form of Exhibit "C" attached hereto ("Escrow
Agreement"), the Purchase Price plus the amount of cash on hand in AGEL
as of Closing less the liabilities set out on the Exceptions Schedule
shall be deposited with the Escrow Agent (all such amounts deposited
pursuant to the
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terms and subject to the conditions of the Escrow Agreement as
contemplated by this Agreement shall be referred to in the aggregate
as the "Escrow Amount"). Pursuant to the terms and subject to the
conditions of the Escrow Agreement, promptly following the expiration
of the Termination Date and after giving effect to the final
determination of all claims of the Buyers, unless the parties instruct
the Escrow Agent otherwise, the Escrow Agent shall distribute to
Shamrock 1.8% of the Escrow Amount (it being understood that the other
98.2% of the Escrow Amount shall be distributed to the Estate).
5.02 Any right of setoff under this Agreement with respect to a
claimed breach or the happening of any occurrence described in Section 4
shall expire on September 30, 2000 (the "Termination Date"), unless on
or prior to the Termination Date a claim has been made by the Buyers. If
a claim is timely made, it may continue to be asserted beyond the
Termination Date.
5.03 The amounts which are payable to the Buyers as a result of
the successful determination of a claim or claims of the Buyers shall be
paid solely out of the Escrow Amount pursuant to the terms and subject
to the conditions of the Escrow Agreement.
6. Other Remedies. In lieu of the right of setoff described herein, if
there is any breach by Shamrock or the happening of any occurrence described in
Section 4 the Buyers shall, at their option, be entitled to rescind the
transactions contemplated by this Agreement up to and through the Termination
Date. Shamrock acknowledges and agrees that the right of setoff described herein
alone may not be an adequate remedy for any breach by Shamrock or the happening
of any occurrence described in Section 4 and accordingly expressly agrees that,
in lieu of the right of setoff described herein, the Buyers shall be entitled to
rescind this transaction.
7. Letter Agreement. The Buyers acknowledge and agree that under the
terms of the Letter Agreement and the Order Approving Settlement Agreement Among
the Debtor, the Bennett Entities, AGEL and the AGEL Subsidiaries Regarding
Compromise and Settlement of Claims (the "Order") approved by the United States
Bankruptcy Court, Northern District of New York dated December 23, 1999, AGEL
has transferred to Shamrock all of its right, title and interest in all of its
rights, title and interests under the First Amended Joint Plan of Liquidation
for Am Gam Associates and American Gaming and Resorts of Mississippi, Inc. (the
"Mississippi Interests"). Further, under the Letter Agreement and Order, AGEL is
obligated to deliver or cause to be delivered directly to Shamrock immediately
upon receipt all payments, distributions, dividends and proceeds of a type to
which AGEL is entitled pursuant to or in connection therewith the Irrevocable
Proxy and Consent Agreement dated as of August 23, 1996 between and between Paul
R. Patridge, Patrick F. Daly, James A. Everatt, Charles E. Reisert, Eric C.
Jackson and AGEL, as amended (the "Rising Sun Interests"). The Buyers
acknowledge and agree that following the Closing AGEL will continue to be bound
by the terms of the Letter Agreement and Order and will have no interest or
claim to the Mississippi Interests or Rising Sun Interests.
8. Conditions to Closing. The obligations of the parties under this
Agreement are subject to the satisfaction of the following express conditions
precedent at or before the Closing:
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8.01 AGEL and RSR, LLC shall have executed and delivered a
settlement agreement, in form and substance satisfactory to the Estate
and Shamrock; the settlement agreement shall have been approved by the
Indiana Gaming Commission; and the settlement thereunder shall have
closed.
8.02 The Indiana Gaming Commission shall have approved the sale
of the Stock by the Estate and Shamrock to the Buyers.
8.03 The Estate and Shamrock shall cause AGEL to deliver to the
Buyers copies of any books and records of AGEL, as the Buyers may
reasonably request.
8.04 Buyers shall purchase all of AGEL's shares owned by the
Estate pursuant to the terms of a Stock Purchase Agreement of even date
herewith.
8.05 The United States Bankruptcy Court for the Northern District
of New York shall have approved the sale of the Stock by the Estate
pursuant to the terms of the Stock Purchase Agreement, free and clear
of claims, liens and encumbrances, and the conversion of the Series C,
D and E preferred stock into common stock ("Bankruptcy Court
Approval") and the Order approving the sale and conversion shall have
become final.
8.06 AGEL and J. Douglas Wellington shall have agreed upon the
terms of a new consulting/employment agreement which agreement will be
subject to the Closing of this Agreement and the Stock Purchase
Agreement with the Trustee.
9. Termination and Postponement. This Agreement may be terminated, and the
transactions provided for herein abandoned, at any time prior to but not after
the Closing, as follows:
9.01 by mutual consent of the Buyers and Shamrock;
9.02 by the Buyers or Shamrock, if any of the conditions set
forth in Article VIII shall not have been met or cannot reasonably be
met by the Closing Date; or
9.03 by the Buyers or Shamrock if the Closing has not been
consummated by August 31, 2000.
In the event of the termination and abandonment of this
Agreement and the transactions contemplated hereby, this Agreement shall
become void and of no effect, without any liability on the part of any
party or its directors, officers or shareholders.
10. Miscellaneous.
10.01 All notices, requests, demands and other communications
which are required or may be given pursuant to the terms of this
Agreement shall be in written or electronic form and shall be deemed
delivered (i) on the date of delivery when delivered
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by hand, (ii) on the date of transmission when sent by facsimile
transmission during normal business hours with telephone confirmation
of receipt, (iii) one day after dispatch when sent by overnight
courier maintaining records of receipt, or (iv) three days after
dispatch when sent by certified mail, postage prepaid, return-receipt
requested; provided that, in an any such case, such communication is
addressed as provided in the immediately following paragraph. All
notices, requests, demands and other communications which are required
or may be given pursuant to the terms of this Agreement shall be
addressed as follows:
(i) If to Shamrock:
Shamrock Holdings Group, Inc.
c/o Richard C. Breeden
100 Northfield Street
Greenwich, CT 06831
Telephone: 203-618-0065
Facsimile: 203-618-0063
with a copy to:
William J. Brown, Esq.
Phillips Lytle Hitchcock Blaine & Huber, LLP
3400 HSBC Center Buffalo, New York
14203-2887 Telephone: 716-847-8400
Facsimile: 716-852-6100
(ii) If to the Buyers:
John F. Fisbeck
7931 West 86th Street
Indianapolis, Indiana 46278
Telephone: 317-262-4250
Facsimile: 317-262-4106
with a copy to:
Robert J. Milford, Esq. or
Constance J. Gustafson, Esq.
Lowe Gray Steele and Darko, LLP
Bank One Tower
111 Monument Circle, Suite 4600
Indianapolis, Indiana 46204-5146
Telephone: 317-236-8020
Facsimile: 317-236-6472
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Any party may change its address or the designation of the intended
recipient of notice provided that it notifies the other parties in
accordance with the terms of this section.
10.02 This Agreement shall not be assigned by Shamrock but the
Buyers may, without Shamrock's approval, assign their interests. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their successors and permitted assigns. Nothing in this
Agreement is intended to confer, expressly or by implication, upon any
other person any rights or remedies under or by reason of this
Agreement.
10.03 This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Indiana
(without giving effect to the conflicts of law provisions thereof).
10.04 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and which together shall
constitute a single instrument. The parties agree that they will accept
executed documents with facsimile signatures which will be promptly
replaced with original signatures.
10.05 Shamrock and the Buyers agree that the timing and content
of any press release or other public announcement with respect to this
Agreement and the transactions contemplated hereby shall be subject to
mutual agreement of the parties hereto to the maximum extent feasible
and consistent with their respective legal obligations to disseminate
material information to their stockholders and the public.
10.06 This Agreement, Schedules, and the Consulting Agreement
between AGEL and J. Douglas Wellington, contain the entire understanding
and agreement between the parties hereto with respect to the
transactions contemplated hereby and supersede all prior and
contemporaneous agreements or understandings, express or implied, oral
or written, between the parties with respect to the subject matter
hereof.
10.07 At any time prior to the Closing Date, the parties hereto
may, by written agreement (i) extend the time for the performance of any
of the obligations or other acts of the parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained in this
Agreement or in any schedule or document delivered pursuant hereto and
(iii) waive compliance with any of the covenants or agreements contained
in this Agreement.
10.08 If any covenant or provision hereof is determined to be
void or unenforceable in whole or in part, it shall not be deemed to
affect or impair the invalidity of any other covenant or provision, each
of which is hereby declared to be separate and distinct. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable. If
any provision of this Agreement is declared invalid or unenforceable for
any reason other than overbreadth, the offending provision will be
modified so as to maintain the essential benefits of the bargain among
the parties hereto to the maximum extent possible, consistent with law
and public policy.
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10.09 If any legal action or any other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorney's fees and
other costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
10.10 The parties submit to the jurisdiction of the United State
Bankruptcy Court for the Northern District of New York for resolution of
any disputes or controversies arising out of this Agreement.
10.11 The representations and warranties, covenants and
obligations of the parties contained herein shall survive the Closing
Date. There are no promises, undertakings, representations or warranties
by Shamrock relative to the subject matter hereof not expressly set
forth herein.
10.12 Shamrock and Buyers shall each bear their respective costs
and expenses incurred prior to Closing, including legal, accounting and
other expenses, in connection with the proposed sale.
10.13 Richard C. Breeden is entering into this Agreement solely
in his capacity as President of Shamrock and shall have no personal
responsibility or liability whatsoever under this Agreement.
10.14 J. Douglas Wellington is entering into this Agreement
solely in his capacity as President and CEO of AGEL and shall have no
personal responsibility or liability whatsoever under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
/s/ David B. McLane
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David B. McLane
/s/ John F. Fisbeck
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John F. Fisbeck
[SIGNATURE PAGE TO SHAMROCK STOCK PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
/s/ Carter M. Fortune
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Carter M. Fortune
[SIGNATURE PAGE TO SHAMROCK STOCK PURCHASE AGREEMENT]
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SHAMROCK HOLDINGS GROUP, INC.
/s/ Richard C. Breeden
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Richard C. Breeden, President
[SIGNATURE PAGE TO SHAMROCK STOCK PURCHASE AGREEMENT]
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AMERICAN GAMING & ENTERTAINMENT, LTD.
/s/ J. Douglas Wellington
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J. Douglas Wellington, President and CEO
[SIGNATURE PAGE TO SHAMROCK STOCK PURCHASE AGREEMENT]
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