Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
Dated as of April 17, 2000
among
PH CASINO RESORTS, INC.
HARVEYS CASINO RESORTS
and
HARVEYS ACQUISITION CORPORATION
SCHEDULES
EXHIBITS
Exhibit A Voting and Contribution Agreement
Exhibit B Pinnacle Merger Agreement
AGREEMENT AND PLAN OF MERGER dated as of April 17, 2000
(this "Agreement"), among PH CASINO RESORTS, INC., a Delaware corporation
("PHCR"), HARVEYS CASINO RESORTS, a Nevada corporation ("Harveys"), and
HARVEYS ACQUISITION CORPORATION, a Nevada corporation ("Harveys Acq Corp").
W I T N E S S E T H
WHEREAS, PHCR is a wholly-owned subsidiary of Harveys and
Harveys Acq Corp is a wholly-owned subsidiary of PHCR;
WHEREAS, the respective Boards of Directors of Harveys and
Harveys Acq Corp have determined that the merger of Harveys Acq Corp with
and into Harveys (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement, is advisable and in the best
interests of their respective corporations and stockholders, and have
approved this Agreement;
WHEREAS, the entry into this Agreement and the consummation
of the transactions herein described are expressly conditional on the
simultaneous entry into an agreement and plan of merger (the "Pinnacle
Merger Agreement") among Pinnacle Entertainment, Inc., a Delaware
corporation ("Pinnacle"), Pinnacle Acquisition Corporation, a Delaware
corporation ("Pinnacle Acq Corp") and PHCR;
WHEREAS, for Federal income tax purposes, the parties intend
that the Merger and the merger of Pinnacle Acq Corp with and into Pinnacle
(the "Pinnacle Merger") pursuant to the Pinnacle Merger Agreement, viewed
as a single transaction or as a series of transactions pursuant to a single
plan, qualifies as an exchange under section 351 of the Internal Revenue
Code of 1986 (the "Code");
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Capitalized and certain other terms used in this Agreement
and not otherwise defined have the meanings set forth in the Pinnacle
Merger Agreement.
ARTICLE II
THE MERGER
SECTION 2.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement and the articles of merger or other
appropriate documents (in any such case, the "Articles of Merger") required
by law in connection with the Merger, and in accordance with the applicable
provisions of the Nevada Revised Statute, as amended (the "NRS"), Harveys
Acq Corp shall be merged with and into Harveys. Following the Merger,
Harveys shall continue as the surviving corporation (the "Harveys Surviving
Corporation") and the separate existence of Harveys Acq Corp will cease.
SECTION 2.02. Closing. The closing (the "Closing") of the
Merger will take place at 10:00 a.m., Los Angeles time, on a date (the
"Closing Date") to be specified by PHCR, which may be on, but shall be no
later than the third business day after, the day on which there shall have
been satisfaction or waiver of the conditions set forth in Article VIII, at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, unless another time date or place is
agreed to in writing by the parties hereto.
SECTION 2.03. Effective Time. On the Closing Date, or as
soon as practicable thereafter, the parties shall file the Articles of
Merger with the Secretary of State of the State of Nevada, in accordance
with the provisions of NRS section 92A.005 et seq. (the "Nevada Merger
Law"), and make all other filings or recordings required by law in
connection with the Merger. The Merger shall become effective at such time
as the Articles of Merger are duly filed with the Secretary of State of the
State of Nevada, or at such other later time as the parties shall agree and
specify in the Articles of Merger (the time the Merger becomes effective
being the "Effective Time").
SECTION 2.04. Effects of the Merger. The Merger shall have
the effects set forth in the Nevada Merger Law. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time,
all the properties, rights, privileges, powers and franchises of Harveys
and Harveys Acq Corp shall vest in the Harveys Surviving Corporation, and
all debts, liabilities and duties of Harveys and Harveys Acq Corp shall
become the debts, liabilities and duties of the Harveys Surviving
Corporation.
SECTION 2.05. Corporate Governance Documents. The Articles
of Incorporation of Harveys Acq Corp, as in effect immediately prior to the
Effective Time of the Merger, shall become the Articles of Incorporation of
the Harveys Surviving Corporation after the Effective Time, except that
such Articles of Incorporation shall be amended to provide that the name of
the Harveys Surviving Corporation shall be "Harveys Casino Resorts," and
thereafter may be amended in accordance with its terms and as provided by
law. The By-laws of Harveys Acq Corp as in effect immediately prior to the
Effective Time shall become the By-laws of the Harveys Surviving
Corporation and thereafter may be amended in accordance with their terms
and as provided by law.
SECTION 2.06. Directors. The directors of Harveys Acq Corp
immediately prior to the Effective Time shall become the directors of the
Harveys Surviving Corporation, and shall serve in such capacity until the
earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 2.07. Officers. The officers of Harveys immediately
prior to the Effective Time shall become the officers of the Harveys
Surviving Corporation, and shall serve in such capacity until the earlier
of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
SECTION 2.08. Further Actions. At and after the Effective
Time, Harveys Surviving Corporation shall take all action as shall be
required in connection with the Merger, including, but not limited to, the
execution and delivery of any further deeds, assignments, instruments or
documentation as are necessary or desirable to carry out the provisions of
this Agreement.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.01. Effect on Capital Stock of Harveys and Harveys
Acq Corp. As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of capital stock of Harveys
or any shares of capital stock of Harveys Acq Corp:
(a) Capital Stock of Harveys
(i) Each share of Class A Common Stock,
par value $.01 per share, of Harveys (the "Harveys Class A Common
Stock") (other than shares canceled in accordance with Section
3.01(c)) issued and outstanding immediately prior to the Effective
Time shall be converted into and become 1.25379 fully paid and
nonassessable shares of Class A Common Stock, par value $.01 per
share, of PHCR (the "PHCR Class A Common Stock").
(ii) Each share of Class B Common
Stock, par value $.01, of Harveys (the "Harveys Class B Common
Stock") (other than shares canceled in accordance with Section
3.01(c)) issued and outstanding immediately prior to the Effective
Time shall be converted into and become 1.25379 fully paid and
nonassessable shares of Class B Common Stock, par value $.01 per
share, of PHCR (the "PHCR Class B Common Stock").
(b) Capital Stock of Harveys Acq Corp. Each share of
common stock, par value $.01 per share, of Harveys Acq Corp (the
"Harveys Acq Corp Common Stock") issued and outstanding immediately
prior to the Effective Time shall be converted into and become one
fully paid and nonassessable shares of common stock, par value $.01
per share, of Harveys Surviving Corporation (the "Harveys Surviving
Corporation Common Stock").
(c) Cancellation of Treasury Stock and Harveys Acq
Corp Owned Stock. Each share of Harveys Class A Common Stock and
Harveys Class B Common Stock that is owned by Harveys or by any
Subsidiary of Harveys and each share of Harveys Class A Common
Stock and Harveys Class B Common Stock that is owned by Harveys Acq
Corp shall automatically be canceled and retired and shall cease to
exist.
SECTION 3.02. Exchange of Certificates.
(a) Exchange Agent. Immediately prior to the
Effective Time, Harveys Acq Corp shall designate a bank or trust to
act as exchange agent in the Merger (the "Exchange Agent").
(b) Exchange Procedure. As soon as reasonably
practicable after the Effective Time, the Harveys Surviving
Corporation shall cause the Exchange Agent to mail to each holder
of record of a certificate or certificates representing which
immediately prior to the Effective Time represented outstanding
shares of Harveys Class A Common Stock or Harveys Class B Common
Stock (the "Certificates") whose shares were converted into the
right to receive PHCR Class A Common Stock or PHCR Class B Common
Stock, as applicable, pursuant to Section 3.01 (i) a letter of
transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Exchange Agent and shall
be in such form and have such other provisions as the Harveys
Surviving Corporation may reasonably specify) and (ii) instructions
for use in effecting the surrender of the Certificates in exchange
for PHCR Class A Common Stock or PHCR Class B Common Stock, as
applicable. Upon surrender of a Certificate for cancellation to the
Exchange Agent together with such letter of transmittal, duly
executed, and such other documents as may reasonably be required by
the Exchange Agent, the holder of such Certificate shall be
entitled to receive in exchange therefor the number of shares into
which the shares of capital stock theretofore represented by such
Certificate shall have been converted pursuant to Sections 3.01 and
3.02, and the Certificate so surrendered shall forthwith be
cancelled.
(c) No Further Ownership Rights in Capital Stock. All
shares delivered upon the surrender of Certificates in accordance
with the terms of this Article III shall be deemed to have been
paid in full satisfaction of all rights pertaining to the shares of
capital stock theretofore represented by such Certificates, and
there shall be no further registration of transfers on the stock
transfer books of the Harveys Surviving Corporation of the shares
of capital stock which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are
presented to the Harveys Surviving Corporation or the Exchange
Agent for any reason, they shall be cancelled and exchanged as
provided in this Article III, except as otherwise provided by law.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Registration Statement.
(a) PHCR shall as promptly as possible after the
Closing, and in no event later than 30 days after the date thereof,
prepare and file with the SEC an amendment (the "Amendment") to
Harveys' registration statement on Form 10. PHCR shall cause the
Amendment to comply as to form in all material respects with the
applicable provisions of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"). PHCR agrees that the Amendment at
the time it is filed shall not include an untrue statement of
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
(b) As promptly as practicable, each party hereto
shall properly prepare and file any other filings required under
the Exchange Act, the Securities Act of 1933, as amended (the
"Securities Act") or any other Laws relating to the Merger or the
Amendment (collectively, "Other Filings").
SECTION 4.02. Reasonable Efforts. Upon the terms and subject
to the conditions set forth in this Agreement, each of the parties agrees
to use all reasonable efforts to take, or cause to be taken (including
through its officers and directors and other appropriate personnel), all
actions, and to do, or cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable,
the Merger, the Pinnacle Merger, the Voting and Contribution Agreement and
the other transactions contemplated by this Agreement, including (a) the
obtaining of all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings (including filings with Governmental Entities, if
any) and the taking of all reasonable steps as may be necessary to obtain
Permits or waivers from, or to avoid an action or proceeding by, any
Governmental Entity (including in respect of any Gaming Law), (b) the
obtaining of all necessary consents, approvals or waivers from third
parties, (c) the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or the
consummation of any of the transactions contemplated by this Agreement,
including seeking to have any stay or temporary restraining order entered
by any court or other Governmental Entity vacated or reversed and (d) the
execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of, this Agreement.
SECTION 4.03. At the Effective Time, all outstanding
employee stock options of Harveys (the "Harveys Options") shall be canceled
and shall be exchanged for options to purchase an number of shares of PHCR
Class A Common Stock or PHCR Class B Common Stock, as applicable (the
"Replacement Options"), equal to the product of (A) the number of Harveys
Options, multiplied by (B) 1.25379. Such Replacement Options shall have an
exercise price per share equal to (A) the exercise price of the Harveys
Options prior to the Merger, divided by (B) 1.25379. Such Replacement
Options shall otherwise have terms identical with those of the Harveys
Options.
SECTION 4.04. Tax Treatment. Each of Harveys, PHCR and
Harveys Acq Corp shall use its reasonable best efforts to cause the Merger
to qualify as an exchange governed by section 351 of the Code.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions to Each Party's Obligation To
Effect the Merger. The respective obligations of each party to effect the
Merger is subject to the satisfaction or waiver on or prior to the Closing
Date of the following conditions:
(a) No Injunctions or Restraints. No statute, rule,
regulation, executive order, decree, temporary restraining order,
preliminary or permanent injunction or other order enacted,
entered, promulgated, enforced or issued by any Governmental Entity
or other legal restraint or prohibition preventing the consummation
of the Merger or the transactions contemplated thereby (including
the Pinnacle Merger) shall be in effect; provided, in the case of a
decree, injunction or other order, each of the parties shall have
used their best efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as possible any decree,
injunction or other order that may be entered.
(b) Gaming Authority Approval. All licenses, permits,
registrations, authorizations, consents, waivers, orders, findings
of suitability or other approvals required to be obtained from, and
all filings, notices or declarations required to be made with, any
Gaming Authority to permit Harveys Acq Corp and Harveys to
consummate the Merger and to permit the Harveys Surviving
Corporation and each of its Subsidiaries to conduct their
businesses in the jurisdictions regulated by such Gaming
Authorities after the Effective Time in the same manner as
conducted by Harveys and its Subsidiaries prior to the Effective
Time (collectively, the "Gaming Approvals") shall have been
obtained or made, as applicable; provided that no such Gaming
Approval shall obligate Harveys Acq Corp, or any of its Affiliates
to obtain any consent, approval, license, waiver, order, decree,
determination of suitability or other authorization with respect to
any limited partner of any Affiliate of Harveys Acq Corp.
( c) Consents. All consents, waivers, orders,
approvals, authorizations, registrations, findings of suitability
and action of any Governmental Entity shall have been obtained or
made, free of any condition.
SECTION 5.02. Conditions to Obligations of Harveys Acq Corp.
The obligations of Harveys Acq Corp to effect the Merger are further
subject to the satisfaction or waiver on or prior to the Closing Date of
the following conditions:
(a) Contribution by Stockholders. The transactions
contemplated by the Voting and Contribution Agreement shall have
been consummated immediately prior to the Effective Time.
SECTION 5.03. Conditions to Obligations of Harveys. The
obligations of Harveys to effect the Merger are further subject to the
satisfaction or waiver on or prior to the Closing Date of the following
condition:
(a) Compliance Committee. Harveys shall have received
any and all consents necessary from the Harveys Casino Resorts
Compliance Committee.
(b) Pinnacle Merger Agreement. All conditions to
closing contained in the Pinnacle Merger Agreement shall have been
satisfied or waived by the appropriate party thereto.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01. Termination. This Agreement may be terminated
at any time prior to the Effective Time by written consent of each of the
parties.
SECTION 6.02. Amendment. This Agreement may be amended by
the mutual agreement of the parties at any time. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties.
SECTION 6.03. Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties of the other party
contained in this Agreement or in any document delivered pursuant to this
Agreement or waive compliance by the other party with any of the agreements
or conditions contained in this Agreement. Any agreement on the part of a
party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. Notices. All notices, requests, claims,
demands and other communications under this Agreement shall be in writing
and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
(a) if to Harveys, Harveys Acq Corp or PHCR, to:
c/o Harveys Casino Resorts
Xxxxxxx 00 & Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
and
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 213-687-5600
SECTION 7.02. Interpretation. When a reference is made in
this Agreement to an Article, Section or Schedule, such reference shall be
to an Article or Section of or a Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation." The Pinnacle
Merger Agreement and the consummation of the transactions contemplated by
the Pinnacle Merger Agreement and the Voting and Contribution Agreement and
the consummation of the transactions contemplated by such Voting and
Contribution Agreement are transactions contemplated by this Agreement. To
the extent any restriction on the activities of Harveys or its Subsidiaries
under the terms of this Agreement requires prior approval under any Gaming
Law, such restriction shall be of no force or effect unless and until such
approval is obtained. If any provision of this Agreement is illegal or
unenforceable under any Gaming Law, such provision shall be void and of no
force or effect.
SECTION 7.03. Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 7.04. Entire Agreement; No Third-Party
Beneficiaries. This Agreement and the Voting and Contribution Agreement
constitute the entire agreements, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter of these agreements and are not intended to confer upon
any Person other than the parties any rights or remedies hereunder.
SECTION 7.05. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA,
WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF LAW.
SECTION 7.06. Gaming Laws. Each of the provisions of this
Agreement is subject to and shall be enforced in compliance with the Gaming
Laws.
SECTION 7.07. Assignment. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise by any of
the parties without the prior written consent of the other parties.
[signature pages follow]
IN WITNESS WHEREOF, PHCR, Harveys, and Harveys Acq Corp have
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
PH CASINO RESORTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
HARVEYS CASINO RESORTS
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
HARVEYS ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
