Exhibit 2.1
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") dated as of April 23, 2006, by and among Pinnacle Entertainment,
Inc., a Delaware corporation ("Pinnacle"), PNK Development 1, Inc., a Delaware
corporation and a wholly owned subsidiary of Pinnacle ("Merger Sub"), and Aztar
Corporation, a Delaware company ("Aztar").
WHEREAS, Pinnacle, Merger Sub and Aztar are parties to that
certain Agreement and Plan of Merger dated as of March 13, 2006, as amended (the
"Merger Agreement");
WHEREAS, pursuant to Section 7.03 of the Merger Agreement, the
parties desire to amend the Merger Agreement as provided in this Amendment; and
WHEREAS, the respective Boards of Directors of Pinnacle,
Merger Sub and Aztar have approved this Amendment and the other transactions
contemplated hereby; and
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto agree as follows:
Section 1. Amendment to Common Stock Merger Consideration.
(a) The third recital of the Merger Agreement is hereby amended to read as
follows:
"WHEREAS, this Agreement has been duly and validly
amended by a further amendment dated as of April 23,
2006, duly executed and delivered by the parties
hereto (the "Second Amendment");
"WHEREAS, in the Merger, subject to the terms of
Article II, each share of common stock, $.01 par
value per share, of Aztar (the "Aztar Common Stock")
will be converted into the right to receive $45.00
per share in cash;"
(b) Section 2.01(b) of the Merger Agreement is hereby
amended and replaced in its entirety with the following:
Conversion of Aztar Common Stock. Subject to Section
2.02(e), each issued and outstanding share of Aztar
Common Stock (other than shares to be canceled in
accordance with Section 2.01(a) and other than Aztar
Dissenting Shares (as defined in Section 2.03(a))
shall be converted into the right to receive $45.00
per share in cash (the "Common Stock Merger
Consideration"). As of the Effective Time, all such
shares of Aztar Common Stock shall no longer be
outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of
a certificate representing any such shares of Aztar
Common Stock shall cease to have any rights with
respect thereto, except the right to receive the
Common Stock Merger Consideration to be paid therefor
upon the surrender of such certificate in accordance
with Section 2.02, without interest.
Section 2. Amendments to the Preferred Stock Merger
Consideration. (a) The fourth recital of the Merger Agreement is hereby amended
and replaced in its entirety with the following:
WHEREAS, in the Merger, subject to the terms of
Article II, each share of Series B ESOP Convertible
Preferred Stock, $.01 par value per share (the "Aztar
Preferred Stock") will be converted into the right to
receive $475.94 per share in cash; and
(b) Section 2.01(c) of the Merger Agreement is hereby
amended and replaced in its entirety
with the following:
Conversion of Aztar Preferred Stock. Subject to
Section 2.02(e), each issued and outstanding share of
Aztar Preferred Stock (other than shares to be
canceled in accordance with Section 2.01(a) and other
than Aztar Dissenting Shares) shall be converted into
the right to receive $475.94 per share in cash,
provided that with respect to any share of Aztar
Preferred Stock that has elected to receive the
liquidation preference plus accrued and unpaid
dividends in accordance with the certification of
designations, preferences and rights of the Aztar
Preferred Stock, each such share shall be converted
into the liquidation preference thereof plus accrued
and unpaid dividends as of the Effective Time (the
"Preferred Stock Merger Consideration" and together
with the Common Stock Merger Consideration, the
"Merger Consideration"). The liquidation preference
of a share of Aztar Preferred Stock is $100. As of
the date hereof, the accrued and unpaid dividends
thereon were less than $180,000 in the aggregate. As
of the Effective Time, all such shares of Aztar
Preferred Stock shall no longer be outstanding and
shall automatically be canceled and retired and shall
cease to exist, and each holder of a certificate
representing any such shares of Aztar Preferred Stock
shall cease to have any rights with respect thereto,
except the right to receive the Preferred Stock
Merger Consideration upon the surrender of such
certificate in accordance with Section 2.02, without
interest.
Section 3. Clarification of Section 3.01(p). Section 3.01(p)
of the Merger Agreement is hereby amended to add the following at the end
thereof:
Vote Required. The affirmative vote of the
holders of record of at least a majority of the
outstanding shares of Aztar Common Stock and Aztar
Preferred Stock, voting together as a single class,
with respect to the adoption of this Agreement is the
only vote of the holders of any class or series of
the capital stock of Aztar or its subsidiaries
required to approve this Agreement, the Merger and
the other transactions contemplated hereby, including
any of the foregoing after giving effect to the
Second Amendment. No "fair price", "merger
moratorium", "control share acquisition", or other
anti-takeover or similar statute or regulation
applies or purports to apply to this Agreement, the
Merger or the other transactions contemplated hereby,
including any of the foregoing after giving effect to
the Second Amendment, except for those which have
been made not applicable to this Agreement, the
Merger and the other transactions contemplated hereby
(including any of the foregoing after giving effect
to the Second Amendment) by valid action of the Board
of Directors of Aztar prior to the execution and
delivery hereof. Prior to the execution and delivery
of the Second Amendment, the Board of Directors of
Aztar has taken all action necessary to assure that
(x) the Rights Agreement exempts Pinnacle and its
affiliates and associates (as defined therein) from
the operation of the provisions of the Rights
Agreement, (y) none of Pinnacle, or its affiliates or
associates are or will become an Acquiring Person (as
defined in the Rights Agreement) as a result of the
execution, delivery and performance of this Agreement
(including any of the foregoing after giving effect
to the Second Amendment) and (z) the execution and
delivery of this Agreement and the consummation of
the transactions contemplated hereby (including any
of the foregoing after giving effect to the Second
Amendment) are exempt from the provisions thereof.
Aztar has taken such action as is necessary so that
this Agreement (after giving effect to the Second
Amendment) is not subject to the provisions of
Article Ninth of its Restated Certificate of
Incorporation, as amended.
Section 4. Termination Fee and Termination Expenses. Section
5.07(b) of the Merger Agreement is hereby amended and modified as follows:
(a) The reference to $42 million in such section
(including the definition of Termination Fee) is
hereby amended and modified to be $49.575 million.
(b) The reference to $13 million in such section
(including the definition of Termination Expenses) is
hereby amended and modified to be $16 million.
Section 5. General Provisions.
(a) Modification; Full Force and Effect. Except as expressly
modified and superseded by this Amendment, the terms, representations,
warranties, covenants and other provisions of the Merger Agreement are and shall
continue to be in full force and effect in accordance with their respective
terms.
(b) References to the Merger Agreement. After the date hereof,
all references to "this Agreement," "the transactions contemplated by this
Agreement," the Merger Agreement and phrases of similar import, shall refer to
the Merger Agreement as amended by this Amendment (it being understood that all
references to "the date hereof" or "the date of this Agreement" shall continue
to refer to March 13, 2006).
(c) Definitions. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
(d) Other Miscellaneous Terms. The provisions of Article VIII
(General Provisions) of the Merger Agreement shall apply mutatis mutandis to
this Amendment, and to the Merger Agreement as modified by this Amendment, taken
together as a single agreement, reflecting the terms therein as modified hereby.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
PINNACLE ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxx
------------------------
Name: Xxxxxx X. Xxx
Title: Chairman of the Board and
Chief Executive Officer
PNK DEVELOPMENT 1, INC.
By: /s/ Xxxxxx X. Xxx
------------------------
Name: Xxxxxx X. Xxx
Title: Chairman of the Board and
Chief Executive Officer
AZTAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
President and Chief Executive
Officer
