EXHIBIT 2.1
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FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of September 4, 1998, by and among
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC., a Delaware corporation
("▇▇▇▇▇▇'▇"), HEI ACQUISITION CORP. III, a Nevada corporation and
a direct wholly-owned subsidiary of ▇▇▇▇▇▇'▇ ("MERGER SUB"), and
RIO HOTEL & CASINO, INC., a Nevada corporation ("RIO").
WHEREAS, the parties hereto previously entered into that
certain Agreement and Plan of Merger, dated as of August 9, 1998
(the "MERGER AGREEMENT"), pursuant to which Merger Sub will, upon
the terms and subject to the conditions set forth in the Merger
Agreement, merge with and into Rio (the "MERGER"), with Rio as
the surviving corporation;
WHEREAS, the parties intended at the time of entering into
the Merger Agreement for the Merger to be accounted for as a
pooling of interests, and that ▇▇▇▇▇▇'▇ would obtain a letter
from its public accountants as to the appropriateness of such
accounting treatment, the receipt of which letter was to be a
condition to ▇▇▇▇▇▇'▇ obligation to effect the Merger (the
"POOLING CONDITION");
WHEREAS, the parties intend that the purpose of this
Amendment is to eliminate the Pooling Condition and any other
provisions in the Merger Agreement that contemplate or require
that the Merger be accounted for as a pooling of interests;
WHEREAS, each of the Boards of Directors of ▇▇▇▇▇▇'▇ and Rio
has determined that eliminating the Pooling Condition and making
the other changes contemplated by this Amendment are in the best
interests of ▇▇▇▇▇▇'▇ or Rio, as the case may be, and their
respective stockholders; and
WHEREAS, the Boards of Directors of ▇▇▇▇▇▇'▇, Merger Sub and
Rio have each approved this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, the parties agree as follows:
1. Terms used and not otherwise defined herein shall have
the meanings given to such terms in the Merger Agreement.
2. The last recital on page 1 of the Merger Agreement is
deleted in its entirety.
3. The fifth sentence of Section 2.3 of the Merger
Agreement (beginning with the words "The conversion shall be
effected in a manner . . .") is deleted in its entirety.
4. Section 3.16 of the Merger Agreement is amended in its
entirety to read as follows:
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SECTION 3.16. TAX MATTERS. To the
best knowledge of Rio, after consulting with
its tax advisors, except as set forth on
Schedule 3.16 of the Rio Disclosure Schedule,
neither Rio nor any of its Affiliates (as
defined in Section 5.12) has taken or agreed
to take any action which would prevent the
Merger from qualifying as a reorganization
described in Section 368(a) of the Code.
5. Section 4.15 of the Merger Agreement is amended in its
entirety to read as follows:
SECTION 4.15. TAX MATTERS. To the
best knowledge of ▇▇▇▇▇▇'▇, after consulting
with its tax advisors, except as set forth on
Schedule 4.15 of the ▇▇▇▇▇▇'▇ Disclosure
Schedule, neither ▇▇▇▇▇▇'▇ nor any of its
Affiliates has taken or agreed to take any
action which would prevent the Merger from
qualifying as a reorganization described in
Section 368(a) of the Code.
6. Section 5.13 of the Merger Agreement is amended in its
entirety to read as follows:
SECTION 5.13. INTENTIONALLY
OMITTED.
7. Clause (f) of Section 6.3 of the Merger Agreement is
deleted in its entirety.
8. Clause (d) of Section 7.3 of the Merger Agreement
is amended in its entirety to read as follows:
(d) Intentionally omitted.
9. Paragraph 2 of the letter attached as Exhibit B
to the Merger Agreement is amended in its entirety to
read as follows:
2. INTENTIONALLY OMITTED.
10. In the event that there is a conflict between any of
the provisions of this Amendment and any of the provisions of the
Merger Agreement, the provisions of this Amendment shall control.
11. Except as expressly amended or modified herein, all the
terms and conditions of the Merger Agreement shall remain
unchanged and in full force and effect.
12. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more
counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
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13. This Amendment shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to
any applicable conflicts of law.
(Signature Page on Next Page)
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IN WITNESS WHEREOF, ▇▇▇▇▇▇'▇, Merger Sub and Rio have caused
this Amendment to be signed by their respective duly authorized
officers as of the date first written above.
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
/s/
-----------------------------------
By:
Its:
HEI ACQUISITION CORP. III
/s/
-----------------------------------
By:
Its:
RIO HOTEL & CASINO, INC.
/s/
-----------------------------------
By:
Its:
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