EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXX HOTELS & CASINO RESORTS, INC.
TAJ MAHAL HOLDING CORP.
AND
THCR MERGER CORP.
______________________________
Dated as of January 8, 1996
______________________________
TABLE OF CONTENTS *
ARTICLE I DEFINITIONS...................................................................... 2
Section 1.01. Definitions............................................................. 2
ARTICLE II THE MERGER...................................................................... 7
Section 2.01. The Merger.............................................................. 7
Section 2.02. Conversion of Outstanding Shares; Redemption............................ 7
Section 2.03. Certificate of Incorporation............................................ 8
Section 2.04. By-laws................................................................. 8
Section 2.05. Directors and Officers.................................................. 8
Section 2.06. Exchange Agent.......................................................... 8
Section 2.07. Election Procedures..................................................... 8
Section 2.08. Taj Holding Class A Common Stock Exchange Procedures.................... 9
Section 2.09. Dividends; Liability.................................................... 10
Section 2.10. No Further Rights for Holders Electing Cash Consideration............... 10
Section 2.11. No Fractional Shares.................................................... 10
Section 2.12. Dissenting Shares....................................................... 10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TAJ HOLDING.................................. 11
Section 3.01. Corporate Organization.................................................. 11
Section 3.02. Capitalization.......................................................... 11
Section 3.03. Subsidiaries............................................................ 11
Section 3.04. Financial Statements; SEC Reports....................................... 11
Section 3.05. Absence of Certain Changes or Events.................................... 12
Section 3.06. Authorization and Validity of Agreements; Opinion of Financial Advisor.. 12
Section 3.07. No Conflict or Violation................................................ 12
Section 3.08. Consents and Approvals.................................................. 13
Section 3.09. Litigation.............................................................. 13
Section 3.10. Taxes................................................................... 13
Section 3.11. Contracts and Leases.................................................... 13
Section 3.12. Joint Proxy Statement................................................... 13
Section 3.13. Takeover Provisions Inapplicable........................................ 14
Section 3.14. Brokerage/Finder's Fees................................................. 14
Section 3.15. Bond Redemption; Taj Funding Offering................................... 14
Section 3.16. THCR Offering........................................................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THCR.......................................... 14
Section 4.01. Corporate Organization.................................................. 14
Section 4.02. Capitalization.......................................................... 14
Section 4.03. Subsidiaries............................................................ 15
Section 4.04. Financial Statements; SEC Reports....................................... 15
Section 4.05. Absence of Certain Changes or Events.................................... 15
Section 4.06. Authorization and Validity of Agreements; Opinion of Financial Advisor.. 15
Section 4.07. No Conflict or Violation................................................ 16
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* The Table of Contents is not part of this Merger Agreement.
Section 4.08. Consents and Approvals.................................................. 16
Section 4.09. Litigation.............................................................. 16
Section 4.10. Taxes................................................................... 17
Section 4.11. Contracts and Leases.................................................... 17
Section 4.12. THCR Registration Statement............................................. 17
Section 4.13. Takeover Provisions Inapplicable........................................ 17
Section 4.14. Brokerage/Finder's Fees................................................. 17
Section 4.15. Taj Funding Offering.................................................... 17
ARTICLE V REPRESENTATIONS AND WARRANTIES OF MERGER SUB..................................... 18
Section 5.01. Corporate Organization; Subsidiaries.................................... 18
Section 5.02. Capitalization.......................................................... 18
Section 5.03. Authorization and Validity of Agreements................................ 18
ARTICLE VI COVENANTS OF TAJ HOLDING........................................................ 18
Section 6.01. Conduct Pending Merger.................................................. 18
Section 6.02. Joint Proxy Statement................................................... 19
Section 6.03. Stockholders Meeting.................................................... 19
Section 6.04. Compliance with the Securities Act...................................... 19
Section 6.05. No Solicitation......................................................... 19
Section 6.06. Dividend Prohibition.................................................... 20
Section 6.07. Letters of Accountants.................................................. 20
ARTICLE VII COVENANTS OF THCR.............................................................. 20
Section 7.01. Conduct Pending Merger.................................................. 20
Section 7.02. Joint Proxy Statement................................................... 21
Section 7.03. Stockholders Meeting.................................................... 21
Section 7.04. Indemnification and Insurance........................................... 21
Section 7.05. Letters of Accountants.................................................. 22
ARTICLE VIII OTHER AGREEMENTS.............................................................. 22
Section 8.01. Stock Exchange Listing.................................................. 22
Section 8.02. Additional Agreements; Consents and Permits............................. 22
Section 8.03. Registration of Securities.............................................. 22
Section 8.04. Access to Information; Confidentiality.................................. 22
Section 8.05. Notification of Certain Matters......................................... 23
Section 8.06. HSR Act................................................................. 23
Section 8.07. Bond Redemption......................................................... 24
ARTICLE IX CONDITIONS TO THE MERGER........................................................ 24
Section 9.01. Conditions to the Obligations of Each Party............................. 24
Section 9.02. Conditions to the Obligation of Taj Holding............................. 25
Section 9.03. Conditions to the Obligations of THCR and Merger Sub.................... 25
ARTICLE X TERMINATION...................................................................... 26
Section 10.01. Termination............................................................ 26
Section 10.02. Effect of Termination.................................................. 26
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ARTICLE XI MISCELLANEOUS................................................................... 27
Section 11.01. Notices................................................................ 27
Section 11.02. Survival............................................................... 27
Section 11.03. Amendment.............................................................. 27
Section 11.04. Waiver................................................................. 28
Section 11.05. Successors and Assigns................................................. 28
Section 11.06. Governing Law.......................................................... 28
Section 11.07. Gaming Laws............................................................ 28
Section 11.08. Integration............................................................ 28
Section 11.09. Third Party Beneficiaries.............................................. 28
Section 10.11. Specific Performance................................................... 28
Section 11.11. Remedies Cumulative.................................................... 28
Section 11.12. Publicity.............................................................. 28
Section 11.13. Fees & Expenses........................................................ 29
Section 11.14. Headings; Counterparts; Effectiveness.................................. 29
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of January 8, 1996 (the "Merger
Agreement"), by and among XXXXX HOTELS & CASINO RESORTS, INC., a Delaware
corporation ("THCR"), TAJ MAHAL HOLDING CORP., a Delaware corporation ("Taj
Holding"), and THCR MERGER CORP., a Delaware corporation and a wholly owned
subsidiary of THCR ("Merger Sub").
WHEREAS, Taj Holding and certain of its affiliates and THCR and certain of
its affiliates desire to effect the Merger Transaction, which includes (a) the
merger of Merger Sub with and into Taj Holding upon the terms and subject to the
conditions set forth herein (the "Merger"); (b) consummation of the offering by
THCR (the "THCR Offering") of up to $140,000,000 of Common Stock of THCR, par
value $.01 per share ("THCR Common Stock"), and the offering by Xxxxx Xxx Xxxxx
Funding, Inc. ("Taj Funding") or its affiliate of up to $750,000,000 aggregate
principal amount of debt securities (the "Taj Funding Offering"), the aggregate
net proceeds of which will be used, together with available cash of Xxxxx Xxx
Xxxxx Associates ("Taj Associates"), to, among other things, (i) pay cash,
pursuant to this Merger Agreement, to those holders of Class A Common Stock of
Taj Holding, par value $.01 per share (the "Taj Holding Class A Common Stock"),
electing to receive cash in the Merger, (ii) redeem (the "Bond Redemption") Taj
Funding's outstanding 11.35% Mortgage Bonds, Series A due 1999 (the "Bonds"),
(iii) redeem the outstanding shares of Class B Common Stock of Taj Holding, par
value $.01 per share (the "Taj Holding Class B Common Stock"), as required in
connection with the Bond Redemption, (iv) purchase certain real property
(collectively, the "Specified Parcels") that is currently leased by Taj
Associates, the owner and operator of the Xxxxx Xxx Xxxxx Casino Resort (the
"Taj Mahal"), from Xxxxx Xxx Xxxxx Realty Corp. ("Realty Corp."), a corporation
wholly owned by Xxxxxx X. Xxxxx ("Xxxxx"), and (v) make a payment to Bankers
Trust Company ("Bankers Trust") to obtain releases of the Liens (defined below)
and guarantees that Bankers Trust has with respect to Taj Associates; (c) the
contribution by Xxxxx to Xxxxx Hotels & Casino Resorts Holdings, L.P., a
subsidiary of THCR ("THCR Holdings"), and Taj Mahal Holdings LLC ("Taj Holdings
LLC") of all of his direct and indirect ownership interests in Taj Associates;
and (d) the contribution by THCR to THCR Holdings and Taj Holdings LLC of all
its indirect ownership interests in Taj Associates acquired in the Merger;
WHEREAS, THCR and Xxxxx have agreed that (a) in exchange for their
contributions to THCR Holdings and Taj Holdings LLC, THCR's and Trump's
beneficial equity interests in THCR Holdings will be adjusted pursuant to the
terms of the Amended and Restated Agreement of Limited Partnership of THCR
Holdings (the "Partnership Agreement"), and (b) as part of the Merger
Transaction, THCR will issue to Xxxxx a warrant to purchase 1.8 million shares
of THCR Common Stock, one-third of which may be purchased on or prior to (i) the
third anniversary of the issuance of the warrant at $30 per share, (ii) the
fourth anniversary of the issuance of the warrant at $35 per share and (iii) the
fifth anniversary of the issuance of the warrant at $40 per share (the Merger
and the related transactions discussed above are collectively referred to as the
"Merger Transaction");
WHEREAS, pursuant to the Class A Voting Agreement (defined below), the
holders of approximately 52% of the outstanding shares of Taj Holding Class A
Common Stock have agreed to vote in favor of the Merger;
WHEREAS, pursuant to the Xxxxx THCR Voting Agreement (defined below) Xxxxx
has agreed to vote all of the shares in THCR beneficially owned by him in favor
of the Merger Transaction, and pursuant to the Xxxxx Xxx Voting Agreement
(defined below) Xxxxx has agreed to vote all of the shares beneficially owned by
him in Taj Holding in favor of the Merger Agreement;
WHEREAS, the THCR Special Committee of the Board of Directors of THCR
(defined below), and the Taj Holding Class B Directors (defined below) and the
Board of Directors of Taj Holding, have received the DLJ Fairness Opinion and
the Rothschild Fairness Opinion (each defined below), respectively;
WHEREAS, the THCR Special Committee and the Board of Directors of THCR have
determined that the Merger Transaction is consistent with and in furtherance of
the long-term business strategy of THCR;
WHEREAS, the Taj Holding Class B Directors and the Board of Directors of
Taj Holding have determined that the Merger is consistent with and in
furtherance of the long-term business strategy of Taj Holding;
WHEREAS, the THCR Special Committee and the Board of Directors of THCR have
determined that the Merger Transaction is fair to, and in the best interests of,
THCR;
WHEREAS, the Taj Holding Class B Directors and the Board of Directors of
Taj Holding based on, among other things, the advice of the financial advisor to
Taj Holding and existence of the Class A Voting Agreement (defined below), have
determined that the Merger is fair to, and in the best interests of, Taj Holding
and the holders of Taj Holding Class A Common Stock;
WHEREAS, the THCR Special Committee and the Board of Directors of THCR have
approved the Merger Transaction and this Merger Agreement;
WHEREAS, the Taj Holding Class B Directors and the Board of Directors of
Taj Holding have approved the Merger and this Merger Agreement; and
WHEREAS, the Board of Directors of Merger Sub has approved this Merger
Agreement and THCR, as the sole stockholder of Merger Sub, has approved and
adopted this Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Merger Agreement, the
following terms shall have the respective meanings set forth below (terms
defined in the singular shall have the same meanings when used in the plural and
vice versa):
"Acquisition Proposal" with respect to any Person shall mean any proposed
(i) merger, consolidation, share exchange or similar transaction involving such
Person or a Subsidiary of such Person, as a result of which the consolidated
assets of such Person and its Subsidiaries taken as a whole, increase or
decrease by 25% or more, (ii) sale, lease or other disposition directly or
indirectly (other than by merger, consolidation, share exchange or similar
transaction) of assets of such Person or its Subsidiaries representing 25% or
more of the consolidated assets of such Person and its Subsidiaries, (iii)
issue, sale, or other disposition (other than by merger, consolidation, share
exchange or similar transaction) of securities (or options, rights or warrants
to purchase, or securities convertible into, such securities) representing 25%
or more of the voting power of such Person or (iv) transaction in which any
Person shall acquire beneficial ownership, or the right to acquire beneficial
ownership or any "group" (as such term is defined under the Exchange Act) shall
have been formed which beneficially owns or has the right to acquire beneficial
ownership of 25% or more of the outstanding common stock of such Person (other
than Persons or groups having such beneficial ownership as of the date hereof).
"Bankers Trust" shall have the meaning set forth in the Recitals.
"Bond Indenture" shall mean the Amended and Restated Indenture, dated as of
October 4, 1991, among Taj Funding, as issuer, Taj Associates, as guarantor, and
First Bank National Association, as trustee, relating to the issuance of the
Bonds.
"Bond Redemption" shall have the meaning set forth in the Recitals.
"Bonds" shall have the meaning set forth in the Recitals.
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"Cash Consideration" shall have the meaning set forth in Section 2.02.
"Certificate of Merger" shall have the meaning set forth in Section 2.01.
"Class A Voting Agreement" means the letter agreement, dated as of October
6, 1995, among Taj Holding, Taj Associates, Taj Funding, Xxxxxx Investment
Management, Xxxxxxxx Partners, L.P., Prudential Securities, Xxxxx Xxxxxxxx Ltd.,
SC Fundamental Value Fund, L.P. and SC Fundamental Value BVI Ltd., relating to
the voting of shares of Taj Holding Class A Common Stock, as such agreement may
be amended from time to time.
"Closing" shall have the meaning set forth in Section 2.01.
"Confidential Information" shall mean all information about a party hereto,
whether furnished before or after the date hereof, and regardless of the manner
in which it is furnished, together with all analyses, compilations, studies,
summaries, extracts or other documents, which contain or otherwise reflect such
information. Confidential Information shall not include information which the
recipient can clearly demonstrate falls within any of the following categories:
(i) information which has come within the public domain through no fault or
action of the recipient or its affiliates (including, without limitation, all
information contained in publicly available documents filed with the SEC); (ii)
information which was known to the recipient on a non-confidential basis prior
to its disclosure by a party hereto; or (iii) information which becomes
available to the recipient on a non-confidential basis from any third party, the
disclosure of which to, or the receipt of which by, the recipient, to the
knowledge of the recipient after due inquiry, does not violate any contractual
or legal obligation said third party has to the disclosing party or any other
Person with respect to such information.
"Current D&O Premium" shall mean an amount not greater than 150% of the
premium paid by Taj Holding (on an annualized basis) for directors' and
officers' liability insurance during the period from January 1, 1996 to the
Effective Time.
"Debt S-1" shall have the meaning set forth in Section 3.15.
"DGCL" shall mean the Delaware General Corporation Law.
"Disclosing Party" shall mean any party to this Merger Agreement that
discloses or provides Confidential Information to any other party to this Merger
Agreement.
"Dissenting Shares" shall have the meaning set forth in Section 2.12.
"DLJ" shall have the meaning set forth in Section 4.06.
"DLJ Fairness Opinion" shall have the meaning set forth in Section 4.06.
"Effective Time" shall have the meaning set forth in Section 2.01.
"Election Deadline" shall have the meaning set forth in Section 2.07.
"Election Form" shall have the meaning set forth in Section 2.07.
"Equity S-1" shall have the meaning set forth in Section 3.16.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder.
"Exchange Agent" shall have the meaning set forth in Section 2.06.
3
"Exchange Agreement" shall mean the Exchange and Registration Rights
Agreement, dated as of June 12, 1995, between THCR and Xxxxx.
"Exchange Fund" shall have the meaning set forth in Section 2.08.
"First Fidelity" shall mean First Fidelity Bank, N.A.
"Gaming Authority" shall mean the New Jersey Casino Control Commission, the
New Jersey Division of Gaming Enforcement, the Indiana Gaming Commission, the
Mississippi Gaming Commission and the Mississippi State Tax Commission or any
other governmental agency which regulates gaming in a jurisdiction in which
either THCR or its Subsidiaries or Taj Holding or its Subsidiaries conducts
gaming activities.
"Gaming Laws" shall mean any laws, rules, regulations or ordinances
governing gaming activities and any administrative rules or regulations
promulgated thereunder, and any other corresponding statutes, rules and
regulations.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Joint Proxy Statement" shall mean the joint proxy statement of Taj Holding
and THCR with respect to the Taj Holding Meeting and the THCR Meeting.
"Lien" shall mean any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Market Value" shall mean the average of the high and low per share sales
prices of the THCR Common Stock during the fifteen trading days immediately
preceding the Effective Time or, if THCR and Taj Holding mutually agree, during
any such other period as agreed under the Class A Voting Agreement.
"Merger" shall have the meaning set forth in Recitals.
"Merger Agreement" shall have the meaning set forth in the Preamble.
"Merger Consideration" shall have the meaning set forth in Section 2.02.
"Merger Sub" shall have the meaning set forth in the Preamble.
"Merger Sub Common Stock" shall mean the Common Stock, par value $.01 per
share, of Merger Sub.
"Merger Sub Material Adverse Effect" shall mean a material adverse effect
with respect to the business, results of operations, properties, operations or
financial condition of Merger Sub.
"Merger Transaction" shall have the meaning set forth in the Recitals.
"NYSE" shall mean the New York Stock Exchange.
"Partnership Agreement" shall have the meaning set forth in the Recitals.
"Permitted Investments" shall have the meaning set forth in Section 2.08.
"Person" shall mean any individual, partnership, corporation, trust,
association, limited liability company, governmental agency or any other entity.
"Realty Corp." shall have the meaning set forth in the Recitals.
4
"Receiving Party" shall mean any party to this Merger Agreement that
receives or obtains Confidential Information from a Disclosing Party.
"Rothschild" shall have the meaning set forth in Section 3.06.
"Rothschild Fairness Opinion" shall have the meaning set forth in Section
3.06.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Special Counsel" shall mean Xxxxxxx & Xxxxx L.L.P., special counsel to the
Taj Holding Class B Directors.
"Specified Parcels" shall have the meaning set forth in the Recitals.
"Stock Consideration" shall have the meaning set forth in Section 2.02.
"Subsidiary" shall mean, with respect to any Person, any other Person in
which such first Person, directly or indirectly, owns, controls or has the power
to vote at least 50% of the outstanding securities generally entitled to vote
upon the election of directors. For the purposes of this Merger Agreement the
term "Subsidiary" shall also include, with respect to Taj Holding, Taj
Associates and, with respect to THCR, THCR Holdings, Xxxxx Plaza Holding
Associates and Xxxxx Plaza Associates.
"Surviving Corporation" shall mean the surviving corporation in the Merger.
"Taj Associates" shall have the meaning set forth in the Recitals.
"Taj Funding" shall have the meaning set forth in the Recitals.
"Taj Funding Offering" shall have the meaning set forth in the Recitals.
"Taj Holding" shall have the meaning set forth in the Preamble.
"Taj Holding Certificates" shall have the meaning set forth in Section
2.08.
"Taj Holding Class A Common Stock" shall have the meaning set forth in the
Recitals.
"Taj Holding Class B Common Stock" shall have the meaning set forth in the
Recitals.
"Taj Holding Class C Common Stock" shall mean the Class C Common Stock, par
value $.01 per share, of Taj Holding.
"Taj Holding Class B Directors" shall mean the Class B Directors of Taj
Holding.
"Taj Holding Class C Directors" shall mean the Class C Directors of Taj
Holding.
"Taj Holding Indemnified Parties" shall have the meaning set forth in
Section 7.04.
"Taj Holding Material Adverse Effect" shall mean a material adverse effect
with respect to the business, results of operations, properties, operations or
financial condition of Taj Holding and its Subsidiaries, taken as a whole.
5
"Taj Holding Meeting" shall have the meaning set forth in Section 6.03.
"Taj Holding SEC Reports" shall have the meaning set forth in Section 3.04.
"Taj Holdings LLC" shall have the meaning set forth in the Recitals.
"Taj Mahal" shall have the meaning set forth in the Recitals.
"THCR" shall have the meaning set forth in the Preamble.
"THCR Certificates" shall have the meaning set forth in Section 2.08.
"THCR Class B Common Stock" shall mean the Class B Common Stock, par value
$.01 per share, of THCR.
"THCR Common Stock" shall have the meaning set forth in the Recitals.
"THCR Dividends" shall have the meaning set forth in Section 2.08.
"THCR Holdings" shall have the meaning set forth in the Recitals.
"THCR Material Adverse Effect" shall mean a material adverse effect with
respect to the business, results of operations, properties, operations or
financial condition of THCR and its Subsidiaries, taken as a whole.
"THCR Meeting" shall have the meaning set forth in Section 7.03.
"THCR Offering" shall have the meaning set forth in the Recitals.
"THCR Registration Statement" shall mean the Registration Statement on Form
S-4 of THCR to be filed with the SEC in connection with the Merger, including
the Prospectus with respect to the THCR Common Stock included therein.
"THCR SEC Reports" shall have the meaning set forth in Section 4.04.
"THCR Special Committee" shall mean the Special Committee of the Board of
Directors of THCR.
"TM/GP" shall mean TM/GP Corporation, a wholly owned subsidiary of Taj
Holding.
"TM/GP Class B Common Stock" shall mean the Class B Common Stock of TM/GP,
par value $.01 per share.
"Xxxxx" shall have the meaning set forth in the Recitals.
"Xxxxx Xxx Voting Agreement" shall have the meaning set forth in Section
3.06.
"Xxxxx THCR Voting Agreement" shall have the meaning set forth in Section
4.06.
"TTMI Note" shall mean the promissory note from Xxxxx Xxx Mahal, Inc. to
Xxxxx, dated October 4, 1991.
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ARTICLE II
THE MERGER
Section 2.01. The Merger. (a) Upon the terms and subject to the
conditions of this Merger Agreement, at the Effective Time, Merger Sub shall be
merged with and into Taj Holding in accordance with the DGCL, whereupon the
separate existence of Merger Sub shall cease, and Taj Holding shall be the
Surviving Corporation.
(b) Unless this Merger Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
10.01 and subject to the satisfaction or, if permissible, waiver of the
conditions set forth in Article IX, the closing of the Merger (the "Closing")
shall take place as promptly as practicable (and in any event within two
business days) after satisfaction or waiver of the conditions set forth in
Article IX, at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, unless another date, time or place is agreed to in writing
by the parties hereto.
(c) At the Closing, (i) Taj Holding will deliver to THCR and Merger Sub
the opinion referred to in Section 6.04 and the various certificates,
instruments and documents referred to in Section 9.03, (ii) THCR and Merger Sub
will deliver to Taj Holding the various certificates, instruments and documents
referred to in Section 9.02 and (iii) THCR will deliver to the Exchange Agent
the Merger Consideration.
(d) As soon as practicable after the Closing, Taj Holding and Merger Sub
will file, or cause to be filed, with the Secretary of State of the State of
Delaware, a certificate of merger for the Merger in accordance with the
provisions of the DGCL (the "Certificate of Merger"). The Merger shall become
effective at the time such filing is accepted for filing by the Secretary of
State of the State of Delaware or at such other time as set forth in the
Certificate of Merger (the "Effective Time").
(e) From and after the Effective Time, the Surviving Corporation, shall
have all the rights, privileges, powers and franchises and be subject to all of
the restrictions, disabilities and duties of Taj Holding and Merger Sub, all as
provided under the DGCL.
Section 2.02. Conversion of Outstanding Shares; Redemption. (a) At the
Effective Time:
(i) each share of Taj Holding Class A Common Stock outstanding
immediately prior to the Effective Time shall, except as otherwise provided
in this Section, be converted into and represent the right to receive, at
the holder's election, either (x) $30.00 in cash (the "Cash Consideration")
or (y) that number of fully paid and nonassessable shares of THCR Common
Stock determined by dividing $30.00 by the Market Value (the "Stock
Consideration" and together with the Cash Consideration, the "Merger
Consideration");
(ii) all shares of Taj Holding Class C Common Stock outstanding
immediately prior to the Effective Time shall be canceled; and
(iii) each share of Merger Sub Common Stock outstanding immediately
prior to the Effective Time shall be converted into and represent the right
to receive one fully paid and nonassessable share of Common Stock, par
value $0.01 per share, of the Surviving Corporation.
(b) Immediately prior to the Effective Time, Taj Holding shall cause each
share of Taj Holding Class B Common Stock outstanding immediately prior to such
time to be redeemed at $.50 per share in accordance with the provisions of the
certificate of incorporation of Taj Holding and the Bond Indenture.
(c) Each share of Taj Holding Class A Common Stock held by Taj Holding as
treasury stock immediately prior to the Effective Time or owned by any direct or
indirect Subsidiary of Taj Holding immediately prior to the Effective Time shall
be canceled, and no conversion or payment shall be made with respect thereto.
7
Section 2.03. Certificate of Incorporation. The certificate of
incorporation of Merger Sub in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation, until amended in
accordance with the DGCL, except that Article Second thereof shall be amended to
read as follows: "The name of the Corporation is Taj Mahal Holding Corp."
Section 2.04. By-laws. The by-laws of Merger Sub in effect at the
Effective Time shall be the by-laws of the Surviving Corporation, until amended
in accordance with the DGCL and the certificate of incorporation of the
Surviving Corporation.
Section 2.05. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed in accordance with the DGCL and
the Surviving Corporation's certificate of incorporation and by-laws, (a) the
directors of Merger Sub at the Effective Time shall be the directors of the
Surviving Corporation and (b) the officers of Taj Holding at the Effective Time
shall be the officers of the Surviving Corporation.
Section 2.06. Exchange Agent. Prior to the Effective Time, THCR and Taj
Holding shall designate Continental Stock Transfer & Trust Company, or another
mutually acceptable bank or trust company, to act as exchange agent for the
Merger (the "Exchange Agent").
Section 2.07. Election Procedures. (a) Taj Holding shall, or shall cause
the Exchange Agent to, send an election form (the "Election Form") in form
satisfactory to THCR, to each holder of Taj Holding Class A Common Stock
together with the Joint Proxy Statement. Each Election Form shall permit each
holder of Taj Holding Class A Common Stock (or the beneficial owner through
appropriate and customary documentation and instructions) to elect to receive
either the Stock Consideration or the Cash Consideration.
(b) Any holder of Taj Holding Class A Common Stock who wishes to receive
Cash Consideration must send the Election Form properly completed to the
Exchange Agent at the address set forth in the Election Form on or before 5:00
p.m. on the business day prior to the Taj Holding Meeting or at any other time
and date as Taj Holding and THCR may mutually agree (the "Election Deadline").
(c) Holders of the Taj Holding Class A Common Stock who (i) fail to
complete properly the Election Form, (ii) fail to send the Election Form to the
Exchange Agent prior to the Election Deadline or (iii) make no election, shall
be deemed to have elected to receive the Stock Consideration.
(d) Taj Holding shall use its best efforts to make available one or more
Election Forms as may be reasonably requested by all Persons who become holders
(or beneficial owners) of Taj Holding Class A Common Stock between the record
date established for purposes of the Taj Holding Stockholder Meeting and the
Election Deadline.
(e) Any Election Form may be revoked prior to the Election Deadline by
submitting a new Election Form to the Exchange Agent. In addition, all Election
Forms shall automatically be deemed revoked if the Exchange Agent is notified in
writing by Taj Holding and THCR that the Merger has been abandoned or this
Merger Agreement has been terminated.
(f) Subject to the terms of this Merger Agreement, the determination of
the Exchange Agent shall be binding and conclusive as to whether or not the
Election Form has been properly or timely submitted or revoked. Neither the
Exchange Agent, Taj Holding, THCR nor Merger Sub shall be under any obligation
to notify any Person of any defect in an Election Form or the revocation
thereof.
Section 2.08. Taj Holding Class A Common Stock Exchange Procedures. (a)
As soon as practicable after the Effective Time, THCR shall instruct the
Exchange Agent to mail to each holder of a certificate or certificates
evidencing shares of Taj Holding Class A Common Stock (other than Dissenting
Shares) (the "Taj Holding Certificates") (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
Taj Holding Certificates shall pass, only upon proper delivery of such Taj
Holding Certificates to the Exchange
8
Agent) and (ii) instructions to effect the surrender of the Taj Holding
Certificates in exchange for Merger Consideration. Each holder of Taj Holding
Class A Common Stock, upon surrender to the Exchange Agent of such xxxxxx'x Xxx
Holding Certificates with the letter of transmittal, duly executed, and such
other customary documents as may be required pursuant to such instructions,
shall be given the amount to which such holder is entitled, pursuant to this
Merger Agreement, of (i) certificates evidencing shares of THCR Common Stock
(the "THCR Certificates") as payment of the Stock Consideration, (ii) cash as
payment of the Cash Consideration (without any interest accrued thereon), (iii)
dividends or distributions declared or made on the THCR Common Stock after the
Effective Time and payable between the Effective Time and the time of such
surrender (the "THCR Dividends") and/or (iv) cash for payment of fractional
shares of THCR Common Stock. Until so surrendered, each Taj Holding Certificate
shall after the Effective Time represent for all purposes only the right to
receive THCR Certificates or cash, as the case may be. After the Effective Time,
there shall be no further registration of transfers of Taj Holding Class A
Common Stock. THCR shall establish reasonable procedures for the delivery of
THCR Certificates or cash, as the case may be, to holders of Taj Holding Class A
Common Stock whose Taj Holding Certificates have been lost, destroyed or
mutilated.
(b) At the Closing, THCR shall deposit in trust with the Exchange Agent,
for the benefit of the holders of Taj Holding Class A Common Stock, the
appropriate amount to which such holders are entitled, pursuant to this Merger
Agreement, of THCR Certificates for payment of the Stock Consideration, cash for
payment of the Cash Consideration, THCR Dividends, if any, and cash for payment
of fractional shares of THCR Common Stock (collectively, the "Exchange Fund").
The Exchange Agent shall, pursuant to irrevocable instructions, make the
payments to the holders of Taj Holding Class A Common Stock as set forth in this
Merger Agreement. The Exchange Agent shall not be entitled to vote or exercise
any rights of ownership with respect to the THCR Common Stock held by it from
time to time hereunder, except that it shall hold all THCR Dividends paid or
distributed for the accounts of the Persons entitled thereto.
(c) If any delivery of the Merger Consideration is to be made to a Person
other than the registered holder of the Taj Holding Certificates surrendered in
exchange therefor, it shall be a condition to such delivery that the Taj Holding
Certificate so surrendered shall be properly endorsed or be otherwise in proper
form for transfer and that the Person requesting such delivery shall (i) pay to
the Exchange Agent any transfer or other taxes required as a result of delivery
to a Person other than the registered holder or (ii) establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
(d) Any portion of the Exchange Fund that remains undistributed to the
holders of the Taj Holding Class A Common Stock for 180 days after the Effective
Time shall be delivered to THCR upon demand. Any holder of Taj Holding Class A
Common Stock who has not therefore complied with this Article within 180 days
after the Effective Time shall have no further claim upon the Exchange Agent and
shall thereafter look only to THCR for conversion or payment, as the case may
be, of the Merger Consideration, THCR Dividends and fractional shares of THCR
Common Stock.
(e) If a Taj Holding Certificate has not been surrendered prior to the
date on which any receipt of Merger Consideration, THCR Dividends or cash for
payment of fractional shares of THCR Common Stock would otherwise escheat to or
become the property of any governmental agency, such Taj Holding Certificate
shall, to the extent permitted by applicable law, be deemed to be canceled and
no money or other property will be due to the holder thereof.
(f) The Exchange Agent shall invest cash in the Exchange Fund, as directed
by THCR, on a daily basis, provided that all such investments shall be in
obligations of or guaranteed by the United States of America with remaining
maturities not exceeding 180 days, in commercial paper obligations receiving the
highest rating from either Xxxxx'x Investors Services, Inc. or Standard & Poor's
Corporation, or in certificates of deposit or banker's acceptances of commercial
banks with capital exceeding $500 million (collectively, "Permitted
Investments"). The maturities of Permitted Investments shall be such as to
permit the Exchange Agent to make prompt payment to former stockholders of Taj
Holding entitled thereto as contemplated by this Section. THCR shall promptly
replenish the Exchange Fund to the extent of any losses incurred as a result of
Permitted Investments. Any interest and other income resulting from such
investments shall be paid to THCR. If for any reason (including losses) the
Exchange
9
Fund is inadequate to pay the amounts to which holders of Taj Holding Class A
Common Stock shall be entitled under this Merger Agreement, THCR shall in any
event be liable for payment thereof. The Exchange Fund shall not be used for any
purpose not specifically provided for in this Merger Agreement.
Section 2.09. Dividends; Liability. No THCR Dividend will be paid to
Persons entitled to receive certificates representing THCR Common Stock pursuant
to this Merger Agreement until such Persons surrender their Taj Holding
Certificates. Upon such surrender, THCR Dividends shall be paid to the Person
in whose name the THCR Certificate shall be issued. In no event shall the
Person entitled to receive such dividends or distributions be entitled to
receive interest on such dividends or distributions. Notwithstanding the
foregoing, neither the Exchange Agent nor any party hereto shall be liable to a
holder of Taj Holding Class A Common Stock for any shares of THCR Common Stock
or dividends or distributions thereon delivered to a governmental agency
pursuant to any applicable escheat or similar laws.
Section 2.10. No Further Rights for Holders Electing Cash Consideration.
Holders of Taj Holding Class A Common Stock who elect to receive the Cash
Consideration or who shall receive cash for payment of fractional shares of THCR
Common Stock shall, upon properly surrendering their Taj Holding Certificates,
be deemed to have been paid in full satisfaction of all rights pertaining to the
shares or fractions thereof exchanged for cash theretofore.
Section 2.11. No Fractional Shares. No fractional shares of THCR Common
Stock will be issued in connection with the Merger. In lieu of any fractional
shares, each holder of Taj Holding Class A Common Stock who would otherwise have
been entitled to a fractional share of THCR Common Stock upon surrender of Taj
Holding Certificates for exchange will be paid cash (without interest) in an
amount equal to the Market Value of such fractional shares. As soon as
practicable after the determination of the amount of cash to be paid to former
holders of Taj Holding Class A Common Stock in lieu of any fractional shares,
the Exchange Agent will make available such amounts to such former holders.
Section 2.12. Dissenting Shares. (a) Notwithstanding any other provision
of this Merger Agreement to the contrary, shares of Taj Holding Class A Common
Stock that are outstanding immediately prior to the Effective Time and which are
held by holders who shall have not voted in favor of the Merger or consented
thereto in writing and who shall have demanded properly in writing appraisal for
such shares in accordance with Section 262 of the DGCL and who shall not have
withdrawn such demand or otherwise have forfeited appraisal rights
(collectively, the "Dissenting Shares") shall not be converted into or represent
the right to receive the Merger Consideration. Such holders shall be entitled
to receive payment of the appraised value of such shares, except that all
Dissenting Shares held by holders who shall have failed to perfect or who
effectively shall have withdrawn or lost their rights to appraisal of such
shares under such Section 262 shall thereupon be deemed to have been converted
into and to have become exchangeable, as of the Effective Time, for the right to
receive, without any interest thereon, the Stock Consideration, upon surrender
of the Taj Holding Certificates evidencing such shares.
(b) Taj Holding shall give THCR (i) prompt notice of any demands for
appraisal received by Taj Holding, withdrawals of such demands, and any other
instruments served pursuant to the DGCL and received by Taj Holding and (ii) the
opportunity to direct all negotiations and proceedings with respect to demands
for appraisal under the DGCL. Taj Holding shall not, except with the prior
written consent of THCR, make any payment with respect to any demands for
appraisal, or offer to settle, or settle, any such demands.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TAJ HOLDING
Taj Holding represents and warrants to THCR and Merger Sub that:
Section 3.01. Corporate Organization. Taj Holding is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own its
10
properties and assets and to conduct its businesses as now conducted. Taj
Holding is duly qualified and in good standing in each jurisdiction in which the
property owned, leased or operated by it makes such qualification necessary,
except where the failure to be so qualified and in good standing would not be
reasonably expected to have a Taj Holding Material Adverse Effect.
Section 3.02. Capitalization. The authorized capital stock of Taj Holding
consists of (i) 1,000,000 shares of Preferred Stock, par value $1.00 per share,
(ii) 10,000,000 shares of Taj Holding Class A Common Stock, (iii) 860,000 shares
of Taj Holding Class B Common Stock and (iv) 10,000,000 shares of Taj Holding
Class C Common Stock. 1,350,000, 780,242 and 1,350,000 shares of Taj Holding
Class A Common Stock, Taj Holding Class B Common Stock and Taj Holding Class C
Common Stock, respectively, are issued and outstanding. The outstanding shares
of Taj Holding Class A Common Stock, Taj Holding Class B Common Stock and Taj
Holding Class C Common Stock have been duly authorized and validly issued and
are fully paid, nonassessable and free of preemptive rights. The outstanding
shares of Taj Holding Class A Common Stock, Taj Holding Class B Common Stock and
Taj Holding Class C Common Stock are the sole outstanding capital stock of Taj
Holding. There are no options, warrants or other rights to purchase debt or
equity securities of Taj Holding outstanding.
Section 3.03. Subsidiaries. Each Subsidiary of Taj Holding (i) is a
corporation or other legal entity duly organized, validly existing and (if
applicable) in good standing under the laws of the jurisdiction of its
organization and has the full power and authority to own its properties and
conduct its business and operations as currently conducted, except where the
failure to be duly organized, validly existing or in good standing does not
have, and would not be reasonably expected to have, a Taj Holding Material
Adverse Effect, and (ii) is duly qualified and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary, except where
the failure to be so qualified does not have and would not be reasonably
expected to have a Taj Holding Material Adverse Effect.
Section 3.04. Financial Statements; SEC Reports. Taj Holding has
previously furnished THCR and Merger Sub with true and complete copies of the
Taj Holding and Taj Associates (i) Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, as filed with the SEC, (ii) Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1995, June 30, 1995, and September
30, 1995, as filed with the SEC, (iii) proxy statements related to all meetings
of stockholders (whether annual or special) since January 1, 1995 and prior to
the date hereof and (iv) all other reports or registration statements filed with
the SEC since January 1, 1995 (clauses (i) through (iv) being referred to herein
collectively as the "Taj Holding SEC Reports"). As of their respective filing
dates, the Taj Holding SEC Reports complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be. As
of their respective dates, the Taj Holding SEC Reports, including, without
limitation, any financial statements included therein, did not contain any
untrue statement of a 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 under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial statements
included in the Taj Holding SEC Reports comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods (except as may be indicated therein or in the
notes thereto), present fairly the financial position of the entities to which
they relate as of the dates thereof and the results of their operations and cash
flows for the periods presented therein subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments, any other
adjustments described therein and the fact that certain information and notes
have been condensed or omitted in accordance with the Exchange Act, and are, in
all material respects, in accordance with the books of account and records of
Taj Holding.
Section 3.05. Absence of Certain Changes or Events. Except as described
in the Taj Holding SEC Reports, during the period since September 30, 1995, (i)
the business of Taj Holding and its Subsidiaries has been conducted only in the
ordinary course, consistent with past practice, (ii) neither Taj Holding nor any
of its Subsidiaries has entered into any material transaction other than in the
ordinary course, consistent with past practice, and (iii) there has not been any
event or change that has had a Taj Holding Material Adverse Effect.
11
Section 3.06. Authorization and Validity of Agreements; Opinion of
Financial Advisor. (a) Taj Holding has the corporate power to enter into this
Merger Agreement and to carry out its obligations hereunder and, subject to the
approval of the holders of the Taj Holding Class B Common Stock and the Taj
Holding Class C Common Stock, each voting as a separate class, has the corporate
power to consummate the Merger and the other transactions contemplated by this
Merger Agreement to be performed by Taj Holding. The execution and delivery of
this Merger Agreement, the performance of Taj Holding's obligations hereunder
and the consummation of the Merger and the other transactions contemplated by
this Merger Agreement to be performed by Taj Holding have been duly authorized
by all necessary corporate action by the Taj Holding Class B Directors and the
Board of Directors of Taj Holding. Rothschild Inc. ("Rothschild") has delivered
to the Taj Holding Class B Directors and to the Board of Directors of Taj
Holding its opinion, dated January 8, 1996 (the "Rothschild Fairness Opinion"),
that the consideration to be received by the holders of the Taj Holding Class A
Common Stock in connection with the Merger Transaction is fair, from a financial
point of view, to the holders of the Taj Holding Class A Common Stock. The Taj
Holding Class B Directors and the Board of Directors of Taj Holding have
unanimously approved the terms of the Merger and the other transactions
contemplated by this Merger Agreement to be performed by Taj Holding (subject
to, in the case of the Taj Funding Offering, the negotiation of the terms
relating thereto) and this Merger Agreement. This Merger Agreement has been
duly executed and delivered by Taj Holding and constitutes the valid and binding
obligation of Taj Holding enforceable against Taj Holding in accordance with its
terms, except (i) to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally, and (ii) that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
(b) The Class B Directors of TM/GP and the entire board of directors of
TM/GP have unanimously approved the terms of all the transactions relating to
the Merger to the extent they contemplate action by TM/GP or Taj Associates. The
Taj Holding Class B Directors have caused, pursuant to the certificate of
incorporation of Taj Holding, all the shares of TM/GP Class B Common Stock to
approve the terms of all the transactions relating to the Merger to the extent
they contemplate action by TM/GP or Taj Associates. The Taj Holding Class B
Directors and Taj Holding Class C Directors have caused, pursuant to the
certificate of incorporation of Taj Holding, Taj Holding to approve, as the sole
shareholder of TM/GP, the terms all the transactions relating to the Merger to
the extent they contemplate action by TM/GP or Taj Associates.
(c) Except for the approvals referred to in this Section, no other
corporate proceedings on the part of Taj Holding are necessary to authorize this
Merger Agreement and the transactions contemplated hereby to be performed by it
(subject to, in the case of the Taj Funding Offering, the negotiation of the
terms relating thereto); provided, however, that pursuant to Section 9.01
hereof, this Merger Agreement must also be approved and adopted by a majority of
the outstanding shares of the Taj Holding Class A Common Stock, voting as a
separate class.
(d) Xxxxx, the beneficial owner of all the outstanding shares of Taj
Holding Class C Common Stock, has agreed to vote all of such shares in favor of
the Merger pursuant to a voting agreement (the "Xxxxx Xxx Voting Agreement"), a
copy of which has been delivered to each of the parties hereto.
Section 3.07. No Conflict or Violation. The execution, delivery and
performance by Taj Holding of this Merger Agreement, the consummation of the
Merger, the Bond Redemption and the Taj Funding Offering do not and will not
violate or conflict with any provision of the charter documents or by-laws of
Taj Holding or its Subsidiaries and do not and will not violate any provision of
law, or any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate or result in a breach of or constitute (with
due notice or lapse of time or both) a default under any contract, lease, loan
agreement, mortgage, security agreement, trust indenture or other agreement or
instrument to which Taj Holding or its Subsidiaries are a party or by which they
are bound or to which their respective properties or assets are subject, nor
result in the creation or imposition of any lien, charge or encumbrance of any
kind whatsoever upon any of the properties or assets of Taj Holding or its
Subsidiaries, nor adversely affect or result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises, permits,
authorizations or approvals issued or granted to Taj Holding or its Subsidiaries
by the United States, any state or local government, any foreign national or
local government, or any department, agency, board, commission, bureau or
instrumentality of any of the foregoing, except as would not be reasonably
expected to have a Taj Holding
12
Material Adverse Effect or as would not prevent consummation of the transactions
contemplated by this Merger Agreement.
Section 3.08. Consents and Approvals. The execution, delivery and
performance of this Merger Agreement by Taj Holding do not and will not require
any material consent, waiver, authorization or approval of any governmental or
regulatory authority, domestic or foreign, or of any other Person, and no
material declaration or notification to, or filing or registration with, or
permit of, any governmental or regulatory authority, except as it (i) may be
required in connection or compliance with applicable provisions of the DGCL, the
Exchange Act, the Securities Act, the HSR Act, blue sky or other state
securities laws or Gaming Laws, (ii) would not be reasonably expected to have a
Taj Holding Material Adverse Effect, (iii) would not prevent consummation of the
transactions contemplated by this Merger Agreement or (iv) is otherwise
contemplated in this Merger Agreement.
Section 3.09. Litigation. Except as disclosed in the Taj Holding SEC
Reports, there are no actions, suits, investigations or proceedings
(adjudicatory, rulemaking or otherwise) pending or, to the knowledge of Taj
Holding, threatened against Taj Holding or any of its Subsidiaries, or any
property of Taj Holding or any such Subsidiary in any court or before any
arbitrator of any kind or before or by any governmental or regulatory authority,
domestic or foreign, except actions, suits, investigations or proceedings which,
individually or in the aggregate, do not have and would not be reasonably
expected to result in a Taj Holding Material Adverse Effect.
Section 3.10. Taxes. Taj Holding and its Subsidiaries have filed all
federal, state, county, local and foreign tax returns required to be filed by
them, and have paid all taxes shown to be due thereon, other than taxes
appropriate reserves for which have been made in the financial statements of Taj
Holding and its Subsidiaries (and, to the extent material, such reserves have
been accurately described to THCR). There are no assessments or adjustments
that have been asserted in writing against Taj Holding or its Subsidiaries for
any period for which Taj Holding has not made appropriate reserves in its
financial statements.
Section 3.11. Contracts and Leases. The Taj Holding SEC Reports contain a
complete listing of all material contracts, leases, agreements or
understandings, whether written or oral, required to be described therein or
filed as exhibits thereto pursuant to the Exchange Act. Each of such contracts,
leases, agreements and understandings is in full force and effect and (i) none
of Taj Holding or its Subsidiaries or, to Taj Holding's best knowledge, any
other party thereto, has breached or is in default thereunder, (ii) no event has
occurred which, with the passage of time or the giving of notice would
constitute such a breach or default, (iii) no claim of material default
thereunder has, to Taj Holding's best knowledge, been asserted or threatened and
(iv) none of Taj Holding or its Subsidiaries or, to Taj Holding's best
knowledge, any other party thereto is seeking the renegotiation thereof or
substitute performance thereunder, except where such breach or default, or
attempted renegotiation or substitute performance, individually or in the
aggregate, does not have and would not be reasonably expected to have a Taj
Holding Material Adverse Effect.
Section 3.12. Joint Proxy Statement. None of the information supplied or
to be supplied by Taj Holding for inclusion or incorporation by reference in the
THCR Registration Statement, the Joint Proxy Statement or the Schedule 13E-3 to
be filed by Taj Holding and others in connection with the Merger Transaction,
will at the time it becomes effective (in the case of the THCR Registration
Statement) or it is mailed (in the case of the Joint Proxy Statement) contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. If at any time prior to the Effective Time any event with respect
to Taj Holding, its officers and directors or any of its Subsidiaries should
occur which is required to be described in an amendment of, or a supplement to,
such registration statement or proxy statement, Taj Holding shall notify THCR
thereof.
Section 3.13. Takeover Provisions Inapplicable. As of the date hereof and
at all times on or prior to the Effective Time, Section 203 of the DGCL, is, and
shall be, inapplicable to the Merger and the other transactions contemplated by
the Merger Transaction.
Section 3.14. Brokerage/Finder's Fees. Except for Rothschild, no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the Merger based upon
13
arrangements made by or on behalf of Taj Holding or its Subsidiaries, and the
fees and commissions payable to Rothschild, as contemplated by this Section,
will be paid in full by Taj Holding. Taj Holding hereby indemnifies THCR and
Merger Sub for any fees owing as a result of a breach of this Section.
Section 3.15. Bond Redemption; Taj Funding Offering. Taj Holding, Taj
Associates and Taj Funding have the right under the Bond Indenture to effect the
Bond Redemption. The Boards of Directors of Taj Holding and Taj Funding have
authorized, subject to the consummation of the Merger and the other elements of
the Merger Transaction, (a) the Bond Redemption and (b) the filing of a
registration statement on Form S-1 with the SEC relating to the Taj Funding
Offering (the "Debt S-1") and, subject to the negotiation of the terms relating
thereto, the Taj Funding Offering.
Section 3.16. THCR Offering. None of the information supplied by Taj
Holding with respect to Taj Holding and its Subsidiaries for inclusion in the
registration statement on Form S-1 to be filed by THCR with the SEC relating to
the THCR Offering (the "Equity S-1") will, at the time the Equity S-1 becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. If any time prior to the Effective
Time any event with respect to Taj Holding, its officers and directors or any of
its Subsidiaries should occur which is required to be described in an amendment
to or supplement to such registration statement, Taj Holding shall immediately
notify THCR thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THCR
THCR represents and warrants to Taj Holding that:
Section 4.01. Corporate Organization. THCR is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own its
properties and assets and to conduct its businesses as now conducted. THCR is
duly qualified and in good standing in each jurisdiction in which the property
owned, leased or operated by it makes such qualification necessary, except where
the failure to be so qualified and in good standing would not be reasonably
expected to have a THCR Material Adverse Effect.
Section 4.02. Capitalization. The authorized capital stock of THCR
consists of 50,000,000 shares of THCR Common Stock, 1,000 shares of THCR Class B
Common Stock and 1,000,000 shares of Preferred Stock, par value $1.00 per share.
10,066,667 and 1,000 shares of the THCR Common Stock and the THCR Class B Common
Stock, respectively, are issued and outstanding. All outstanding shares of THCR
Class B Common Stock are owned by Xxxxx. The outstanding shares of THCR Common
Stock and THCR Class B Common Stock have been duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights. The
outstanding shares of the THCR Common Stock and the THCR Class B Common Stock
are the sole outstanding capital stock of THCR. THCR is the sole general
partner of THCR Holdings, and, as of December 31, 1995, THCR held a 60% general
partnership interest in THCR Holdings. As of December 31, 1995, Trump's 40%
limited partnership interest in THCR Holdings was convertible, at Trump's
option, into 6,666,667 shares of THCR Common Stock (subject to certain
adjustments set forth in the Exchange Agreement). The shares of THCR Common
Stock to be issued to holders of Taj Holding Class A Common Stock in connection
with the Merger have been duly authorized and, when issued and delivered to such
holders as provided in this Merger Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such shares of THCR Common Stock will
not be subject to any preemptive or similar rights.
Section 4.03. Subsidiaries. Each Subsidiary of THCR (i) is a corporation
or other legal entity duly organized, validly existing and (if applicable) in
good standing under the laws of the jurisdiction of its organization and has the
full power and authority to own its properties and conduct its business and
operations as currently conducted, except where the failure to be duly
organized, validly existing or in good standing does not
14
have, and would not be reasonably expected to have, a THCR Material Adverse
Effect, and (ii) is duly qualified and in good standing in each jurisdiction in
which the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
be so qualified does not have and would not be reasonably expected to have a
THCR Material Adverse Effect.
Section 4.04. Financial Statements; SEC Reports. THCR has previously
furnished Taj Holding with true and complete copies of the THCR (i) Registration
Statement on Form S-1 (File No. 33-90784), as filed with the SEC, (ii)
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1995 and
September 30, 1995, as filed with the SEC, and (iii) all other reports or
registration statements filed with the SEC since June 7, 1995 (clauses (i)
through (iii) being referred to herein collectively as the "THCR SEC Reports").
As of their respective filing dates, the THCR SEC Reports, including, without
limitation, any financial statements included therein, did not contain any
untrue statement of a 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 under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial statements
included in the THCR SEC Reports comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior periods
(except as may be indicated therein or in the notes thereto), present fairly the
financial position of the entities to which they relate as of the dates thereof
and the results of their operations and cash flows for the periods presented
therein subject, in the case of the unaudited interim financial statements, to
normal year-end audit adjustments, any other adjustments described therein and
the fact that certain information and notes have been condensed or omitted in
accordance with the Exchange Act, and are, in all material respects, in
accordance with the books of account and records of THCR.
Section 4.05. Absence of Certain Changes or Events. Except as described
in the THCR SEC Reports, during the period since September 30, 1995, (i) the
business of THCR and its Subsidiaries has been conducted only in the ordinary
course, consistent with past practice, (ii) neither THCR nor any of its
Subsidiaries has entered into any material transaction other than in the
ordinary course, consistent with past practice, and (iii) there has not been any
change or event that has had a THCR Material Adverse Effect.
Section 4.06. Authorization and Validity of Agreements; Opinion of
Financial Advisor. (a) THCR has the corporate power to enter into this Merger
Agreement and to carry out its obligations hereunder and, subject to the
approval by the affirmative vote of a majority of the outstanding shares of THCR
Common Stock and THCR Class B Common Stock, voting as a single class, has the
power to consummate the Merger and the other transactions contemplated by this
Merger Agreement to be performed by THCR. The execution and delivery of this
Merger Agreement, the performance of THCR's obligations hereunder and the
consummation of the Merger have been duly authorized by all necessary corporate
action by the THCR Special Committee and the Board of Directors of THCR.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") has delivered to the
THCR Special Committee its opinion, dated January 8, 1996 (the "DLJ Fairness
Opinion"), that the aggregate consideration to be paid by THCR pursuant to the
transactions contemplated by this Merger Agreement, is fair, from a financial
point of view, to THCR. The THCR Special Committee and the Board of Directors
of THCR have unanimously approved the terms of the Merger Transaction and this
Merger Agreement. This Merger Agreement has been duly executed and delivered by
THCR and constitutes the valid and binding obligation of THCR enforceable
against THCR in accordance with its terms, except (i) to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally, and (ii) that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) Except for the approval of the Merger Transaction by the holders of
THCR Common Stock and THCR Class B Common Stock as described in this Section and
in Section 9.01 hereof (which approval shall constitute adoption of this Merger
Agreement) and the required amendment to the Partnership Agreement, no other
corporate proceedings on the part of THCR are necessary to authorize the Merger
Transaction.
(c) Xxxxx, the beneficial owner of all the outstanding shares of THCR
Class B Common Stock, has agreed to vote all of such shares and any shares of
THCR Common Stock that he beneficially owns in favor of the Merger
15
Transaction pursuant to a voting agreement (the "Xxxxx THCR Voting Agreement"),
a copy of which has been delivered to each of the parties hereto.
Section 4.07. No Conflict or Violation. The execution, delivery and
performance by THCR of this Merger Agreement, the consummation of the Merger and
the other elements of the Merger Transaction, including, without limitation, the
THCR Offering, do not, and will not violate or conflict with any provision of
the charter documents or by-laws of THCR or its Subsidiaries and do not and will
not violate any provision of law, or any order, judgment or decree of any court
or other governmental or regulatory authority, nor violate or result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which THCR or its Subsidiaries are a party
or by which they are bound or to which their respective properties or assets are
subject, nor result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of THCR
or its Subsidiaries, nor adversely affect or result in the cancellation,
modification, revocation or suspension of any of the licenses, franchises,
permits, authorizations or approvals issued or granted to THCR or its
Subsidiaries by the United States, any state or local government, any foreign
national or local government, or any department, agency, board, commission,
bureau or instrumentality of any of the foregoing, except as would not be
reasonably expected to have a THCR Material Adverse Effect or as would not
prevent consummation of the transactions contemplated by this Merger Agreement.
Section 4.08. Consents and Approvals. The execution, delivery and
performance of this Merger Agreement by THCR and Merger Sub do not and will not
require any material consent, waiver, authorization or approval of any
governmental or regulatory authority, domestic or foreign, or of any other
Person, and no material declaration or notification to, or filing or
registration with, or permit of, any governmental or regulatory authority,
except as it (i) may be required in connection or compliance with applicable
provisions of the DGCL, the Exchange Act, the Securities Act, the HSR Act, blue
sky or other state securities laws or Gaming Laws, (ii) would not be reasonably
expected to have a THCR Material Adverse Effect, (iii) would not prevent
consummation of the transactions contemplated by this Merger Agreement or the
payment of the Merger Consideration following consummation of the Merger or (iv)
is otherwise contemplated in this Merger Agreement.
Section 4.09. Litigation. Except as disclosed in the THCR SEC Reports,
there are no actions, suits, investigations or proceedings (adjudicatory,
rulemaking or otherwise) pending or, to the knowledge of THCR, threatened
against THCR or any of its Subsidiaries, or any property of THCR or any such
Subsidiary in any court or before any arbitrator of any kind or before or by any
governmental or regulatory authority, domestic or foreign, except actions,
suits, investigations or proceedings which, individually or in the aggregate, do
not have and would not be reasonably expected to result in a THCR Material
Adverse Effect.
Section 4.10. Taxes. THCR and its Subsidiaries have filed all federal,
state, county, local and foreign tax returns required to be filed by them, and
have paid all taxes shown to be due thereon, other than taxes appropriate
reserves for which have been made in the financial statements of THCR and its
Subsidiaries (and, to the extent material, such reserves have been accurately
described to Taj Holding). There are no assessments or adjustments that have
been asserted in writing against THCR or its Subsidiaries for any period for
which THCR has not made appropriate reserves in its financial statements.
Section 4.11. Contracts and Leases. The THCR SEC Reports contain a
complete listing of all material contracts, leases, agreements or
understandings, whether written or oral, required to be described therein or
filed as exhibits thereto pursuant to the Exchange Act. Each of such contracts,
leases, agreements and understandings is in full force and effect and (i) none
of THCR or its Subsidiaries or, to THCR's best knowledge, any other party
thereto, has breached or is in default thereunder, (ii) no event has occurred
which, with the passage of time or the giving of notice would constitute such a
breach or default, (iii) no claim of material default thereunder has, to THCR's
best knowledge, been asserted or threatened and (iv) none of THCR or its
Subsidiaries or, to THCR's best knowledge, any other party thereto is seeking
the renegotiation thereof or substitute performance thereunder, except where
such breach or default, or attempted renegotiation or substitute performance,
individually or in the aggregate, does not have and would not be reasonably
expected to have a THCR Material Adverse Effect.
16
Section 4.12. THCR Registration Statement. None of the information
supplied or to be supplied by THCR with respect to THCR and its Subsidiaries for
inclusion or incorporation by reference in the THCR Registration Statement and
the Joint Proxy Statement will at the time it becomes effective (in the case of
the THCR Registration Statement) or it is mailed (in the case of the Joint Proxy
Statement) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading. If at any time prior to the Effective Time any event with respect
to THCR, its officers and directors or any of its Subsidiaries should occur
which is required to be described in an amendment of, or a supplement to, such
registration statement or proxy statement, THCR shall notify Taj Holding
thereof.
Section 4.13. Takeover Provisions Inapplicable. As of the date hereof and
at all times on or prior to the Effective Time, Section 203 of the DGCL, is, and
shall be, inapplicable to the Merger and the other transactions contemplated by
the Merger Transaction.
Section 4.14. Brokerage/Finder's Fees. Except for DLJ, no broker, finder
or investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the Merger based upon arrangements made by or on
behalf of THCR or its Subsidiaries, and the fees and commissions payable to DLJ,
as contemplated by this Section, will be paid in full by THCR. THCR indemnifies
Taj Holding for any fees owing as a result of a breach of this Section.
Section 4.15. Taj Funding Offering. None of the information supplied by
THCR with respect to THCR and its Subsidiaries for inclusion in the Debt S-1
will, at the time the Debt S-1 becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. If any time prior to the Effective Time any event with respect to
THCR, its officers and directors or any of its Subsidiaries should occur which
is required to be described in an amendment to, or supplement to, such
registration statement, THCR shall immediately notify Taj Holding thereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF MERGER SUB
Merger Sub represents and warrants to Taj Holding that:
Section 5.01. Corporate Organization; Subsidiaries. Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite corporate power and authority to
own its properties and assets and to conduct its businesses as now conducted.
Merger Sub is duly qualified and in good standing in each jurisdiction in which
the property owned, leased or operated by it makes such qualification necessary,
except where the failure to be so qualified and in good standing would not be
reasonably expected to have a Merger Sub Material Adverse Effect. Merger Sub
has no Subsidiaries.
Section 5.02. Capitalization. The authorized capital stock of Merger Sub
consists of 1,000 shares of Merger Sub Common Stock, 100 of which are issued and
outstanding. THCR is the owner of all the outstanding shares of the Merger Sub
Common Stock. The outstanding shares of Merger Sub Common Stock have been duly
authorized and validly issued and are fully paid, nonassessable and free of
preemptive rights. The Merger Sub Common Stock is the sole outstanding capital
stock of Merger Sub.
Section 5.03. Authorization and Validity of Agreements. Merger Sub has
the corporate power to enter into this Merger Agreement and to carry out its
obligations hereunder and has the power to consummate the Merger. The execution
and delivery of this Merger Agreement, the performance of Merger Sub's
obligations hereunder and the consummation of the Merger have been duly
authorized by all necessary corporate action by the Board of Directors of Merger
Sub and by THCR as the sole holder of Merger Sub Common Stock. This Merger
Agreement has been duly executed and delivered by Merger Sub and constitutes the
valid and binding obligation of Merger Sub
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enforceable against Merger Sub in accordance with its terms, except (i) to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally, and (ii) that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. No other corporate proceedings on the part
of Merger Sub are necessary to authorize this Merger Agreement and the
transactions contemplated hereby.
ARTICLE VI
COVENANTS OF TAJ HOLDING
Section 6.01. Conduct Pending the Merger. From and after the date of this
Merger Agreement and until the Effective Time, Taj Holding shall, and shall
cause each of its Subsidiaries to, conduct its business solely in the ordinary
course consistent with past practice and, without the prior written consent of
THCR, Taj Holding shall not, and shall cause each of its Subsidiaries not to,
except as required or permitted pursuant to the terms hereof or as contemplated
in the Taj Holding SEC Reports filed through the date hereof or by the terms of
the Merger Transaction:
(i) make any material change in the conduct of its businesses and
operations or enter into any transaction, other than in the ordinary course of
business consistent with past practice, or make any investment other than a
Permitted Investment (as such term is defined in the Bond Indenture);
(ii) make any change in its certificate of incorporation or by-laws, issue
any additional shares of capital stock or equity securities, grant any option,
warrant or right to acquire any capital stock or equity securities, issue any
security convertible into or exchangeable for its capital stock, alter in any
material respect the terms of any of its outstanding securities, or make any
change in its outstanding shares of capital stock or in its capitalization,
whether by reason of a reclassification, recapitalization, stock split or
combination, exchange or readjustment of shares, stock dividend or otherwise;
(iii) incur, assume or guarantee any indebtedness for borrowed money,
issue any notes, bonds, debentures or other corporate securities or grant any
option, warrant or right to purchase any thereof;
(iv) make any sale, assignment, transfer, abandonment or other conveyance
of any of its assets or any part thereof, except in the ordinary course of
business consistent with past practices;
(v) subject any of its assets, or any part thereof, to any lien or suffer
such to be imposed other than such liens as may arise in the ordinary course of
business consistent with past practice or by operation of law;
(vi) redeem, retire, purchase or otherwise acquire, directly or
indirectly, any shares of its capital stock or declare, set aside or pay any
dividends or other distribution in respect of such shares;
(vii) increase the compensation payable or to become payable to its
executive officers or employees, except for increases in the ordinary course of
business in accordance with past practices, or grant any severance or
termination pay to, or enter into any employment or severance agreement (other
than in the ordinary course of business) with, any director or executive
officer, or establish, adopt, enter into or amend in any material respect or
take action to accelerate any rights or benefits under any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, employment,
termination, severance or other plan, agreement, trust fund, policy or
arrangement for the benefit of any director, executive officer or employee;
(viii) take any other action that would cause any of the representations
and warranties made in this Merger Agreement not to remain true and correct; or
(ix) commit itself to do any of the foregoing.
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Section 6.02. Joint Proxy Statement. As promptly as reasonably
practicable after the execution of this Merger Agreement, Taj Holding and THCR
shall prepare and file with the SEC the preliminary Joint Proxy Statement, which
will be included within the THCR Registration Statement. As promptly as
reasonably practicable after comments are received from the SEC with respect to
the THCR Registration Statement and after the satisfactory response thereto by
Taj Holding and THCR, Taj Holding and THCR shall file with the SEC the
definitive Joint Proxy Statement and any amendment to the THCR Registration
Statement and shall use all reasonable efforts to cause the THCR Registration
Statement to become effective as soon thereafter as it is reasonably
practicable. Promptly thereafter, Taj Holding shall distribute the Joint Proxy
Statement and related proxy card and the Election Form to its stockholders.
Section 6.03. Stockholders Meeting. Taj Holding shall take all action
necessary, in accordance with applicable law and its certificate of
incorporation and by-laws, to convene a special meeting of the holders of the
Taj Holding Class A Common Stock, Taj Holding Class B Common Stock and Taj
Holding Class C Common Stock (the "Taj Holding Meeting") as promptly as
practicable for the purpose of approving and adopting this Merger Agreement.
Subject to its fiduciary duties, as advised by Special Counsel, the Board of
Directors of Taj Holding will recommend that holders of Taj Holding Class A
Common Stock, Taj Holding Class B Common Stock and Taj Holding Class C Common
Stock vote in favor of this Merger Agreement at the Taj Holding Meeting.
Section 6.04. Compliance with the Securities Act. At the Closing, Taj
Holding shall cause to be delivered to THCR a certificate (satisfactory to
counsel for THCR) of the general counsel of Taj Associates identifying all
holders of Taj Holding Class A Common Stock who were, to the best of his
knowledge and after being advised by outside counsel, affiliates (for purposes
of Rule 145 under the Securities Act) of Taj Holding at the time of the Taj
Holding Meeting.
Section 6.05. No Solicitation. (a) Subject to the fiduciary duties of the
Board of Directors of Taj Holding, as advised by Special Counsel, neither Taj
Holding nor any of its Subsidiaries shall, directly or indirectly, take (nor
shall Taj Holding authorize or permit its Subsidiaries, officers, directors,
employees, representatives, investment bankers, attorneys, accountants or other
agents or affiliates, to take) any action (i) to knowingly encourage, solicit or
initiate the submission of any Acquisition Proposal, (ii) to enter into any
agreement with respect to any Acquisition Proposal or (iii) to participate in
any way in discussions or negotiations with, or furnish any information to, any
Person in connection with, or take any other action to facilitate any inquiries
or the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal. Taj Holding will promptly communicate to the
other parties hereto any solicitation by or of Taj Holding and the terms of any
proposal or inquiry, including the identity of the Person and its affiliates
making the same, that it may receive in respect of any such transaction, or of
any such information requested from it or of any such negotiations or
discussions being sought to be initiated with it.
(b) Notwithstanding paragraph (a) above, Taj Holding may, directly or
indirectly, furnish information and access, in each case in response to
unsolicited requests therefor, to any Person pursuant to appropriate
confidentiality agreements, and may participate in discussions and negotiate
with such Person concerning any Acquisition Proposal involving Taj Holding or
any direct or indirect Subsidiary of Taj Holding, if the Taj Holding Class B
Directors by a majority vote determine in their good faith judgment that such
action is appropriate in furtherance of the best interests of stockholders.
Section 6.06. Dividend Prohibition. From the date of this Merger
Agreement through the Effective Time, Taj Holding shall not, and shall cause its
Subsidiaries not to, pay or declare any dividend or make any distribution with
respect to any of their equity interests except as contemplated in connection
with the Merger Transaction.
Section 6.07. Letters of Accountants. Taj Holding shall use its
reasonable best efforts to cause to be delivered to THCR "comfort letters" of
Xxxxxx Xxxxxxxx LLP, Xxx Holding's independent public accountants, dated and
delivered the date on which the THCR Registration Statement shall become
effective and as of the Effective Time, and addressed to THCR, in form and
substance reasonably satisfactory to THCR and reasonably customary in scope and
substance for letters delivered by independent public accountants in connection
with transactions such as those contemplated by this Merger Agreement.
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ARTICLE VII
COVENANTS OF THCR
Section 7.01. Conduct Pending the Merger. From and after the date of this
Merger Agreement and until the Effective Time, THCR shall, and shall cause each
of its Subsidiaries to, conduct its business solely in the ordinary course
consistent with past practice and, without the prior written consent of Taj
Holding, THCR shall not, and shall cause each of its Subsidiaries not to, except
as required or permitted pursuant to the terms hereof or as contemplated in the
THCR SEC Reports filed through the date hereof or by the terms of the Merger
Transaction:
(i) make any material change in the conduct of its businesses and
operations or enter into any transaction other than in the ordinary course of
business consistent with past practice;
(ii) make any change in its certificate of incorporation or by-laws, or
make any material change in its outstanding shares of capital stock or in its
capitalization, whether by reason of a reclassification, recapitalization, stock
split or combination, exchange or readjustment of shares, stock dividend or
otherwise;
(iii) take any other action that would cause any of the representations
and warranties made in this Merger Agreement not to remain true and correct; or
(iv) commit itself to do any of the foregoing.
Section 7.02. Joint Proxy Statement. As promptly as reasonably
practicable after the execution of this Merger Agreement, THCR and Taj Holding
shall prepare and THCR shall file with the SEC the THCR Registration Statement,
which shall include the preliminary Joint Proxy Statement and the preliminary
prospectus with respect to the THCR Common Stock to be issued in connection with
the Merger. As promptly as reasonably practicable after comments are received
from the SEC with respect to the THCR Registration Statement and after the
satisfactory response thereto by THCR and Taj Holding, THCR and Taj Holding
shall file with the SEC the definitive Joint Proxy Statement and THCR shall file
with the SEC any amendment to the THCR Registration Statement and shall use all
reasonable efforts to cause the THCR Registration Statement to become effective
as soon thereafter as it is reasonably practicable. Promptly thereafter, THCR
shall distribute the Joint Proxy Statement and related proxy card to its
stockholders.
Section 7.03. Stockholders Meeting. (a) THCR shall take all action
necessary, in accordance with applicable law and its certificate of
incorporation and by-laws, to convene a special meeting of the holders of the
THCR Common Stock and the THCR Class B Common Stock (the "THCR Meeting") as
promptly as practicable for the purpose of approving the Merger Transaction.
Subject to its fiduciary duties, as advised by outside counsel, the Board of
Directors of THCR will recommend that holders of THCR Common Stock vote in favor
of and adopt the Merger Transaction (which approval will constitute adoption of
this Merger Agreement) at the THCR Meeting.
(b) THCR, as the sole stockholder of Merger Sub, has consented to the
adoption of this Merger Agreement by Merger Sub and agrees that such consent
shall be deemed for all purposes as a vote duly adopted at a meeting of the
stockholders of Merger Sub held for such purpose.
Section 7.04. Indemnification and Insurance. (a) For a period of six
years from the Effective Time, each of the Surviving Corporation and TM/GP
shall, and THCR shall cause the Surviving Corporation and TM/GP to, provide to
the former officers and directors of Taj Holding (the "Taj Holding Indemnified
Parties") indemnification as set forth in the certificate of incorporation and
by-laws of THCR as in effect as of the date hereof. THCR agrees, and shall
cause the Surviving Corporation and TM/GP to agree, that until six years from
the Effective Time, unless otherwise required by law, the certificate of
incorporation and by-laws of the Surviving Corporation and TM/GP shall not be
amended, repealed or modified to reduce or limit the rights of indemnity
afforded to the present and former directors, officers and employees of Taj
Holding and TM/GP (including, without limitation, with respect to the
transactions contemplated by this Merger Agreement), or the ability of the
Surviving Corporation or TM/GP to
20
indemnify them, nor to hinder, delay or make more difficult the exercise of such
rights of indemnity or the ability to indemnify.
(b) Should any claim or claims be made against any present or former
director, officer, employee or agent of Taj Holding or TM/GP, arising from his
services as such, within six years of the Effective Time, the provisions of this
Section with respect to indemnification and the certificate of incorporation and
the by-laws of the Surviving Corporation and TM/GP shall continue in effect
until the final disposition of all such claims.
(c) In the event the Surviving Corporation or TM/GP or any of their
respective successors or assigns (i) consolidates with or merges into any other
Person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any Person, then and in each such case, proper
provision shall be made so that the successors and assigns of the Surviving
Corporation or TM/GP, as the case may be, shall assume all of its obligations
set forth in this Section.
(d) For a period of six years after the Effective Time, the Surviving
Corporation and TM/GP shall, and THCR shall cause the Surviving Corporation and
TM/GP to, purchase and maintain in effect directors' and officers' liability
insurance policies covering the Taj Holding Indemnified Parties on terms no less
favorable than the terms of the current insurance policies coverage.
Notwithstanding the foregoing, if the directors' and officers' liability
insurance referred to in this paragraph is unavailable for the Current D&O
Premium, the Surviving Corporation and TM/GP shall obtain as much insurance as
can be obtained for a premium not in excess (on an annualized basis) of the
Current D&O Premium.
(e) In the event any claim is made against present or former directors,
officers or employees of Taj Holding or TM/GP that is covered or potentially
covered by insurance, THCR agrees that it shall, and shall cause the Surviving
Corporation and TM/GP to, do nothing that would forfeit, jeopardize, restrict or
limit the insurance coverage available for that claim until the final
disposition of that claim unless otherwise required by law or their respective
certificate of incorporation or by-laws.
(f) This Section 7.04 is intended to be for the benefit of, and shall be
enforceable by, the Taj Holding Indemnified Parties, their heirs and personal
representatives and shall be binding on THCR, the Surviving Corporation and
TM/GP and their respective successors and assigns.
Section 7.05. Letters of Accountants. THCR shall use its reasonable best
efforts to cause to be delivered to Taj Holding "comfort letters" of Xxxxxx
Xxxxxxxx LLP, THCR's independent public accountants, dated and delivered the
date on which the THCR Registration Statement shall become effective and as of
the Effective Time, and addressed to Taj Holding, in form and substance
reasonably satisfactory to Taj Holding and reasonably customary in scope and
substance for letters delivered by independent public accountants in connection
with transactions such as those contemplated by this Merger Agreement.
ARTICLE VIII
OTHER AGREEMENTS
Section 8.01. Stock Exchange Listing. THCR shall, prior to the Effective
Time, use its best efforts to list on the NYSE, subject to official notice of
issuance, the THCR Common Stock to be issued pursuant to the Merger.
Section 8.02. Additional Agreements; Consents and Permits. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to use
all reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Merger Agreement, including using all reasonable efforts to
obtain all necessary waivers, consents and approvals, to effect all necessary
registrations and filings (including, but not limited to, filings with all
applicable governmental agencies) and to lift any injunction or other legal bar
to the transactions contemplated by this Merger Agreement (and, in such case, to
proceed with the transactions contemplated by this Merger Agreement as
expeditiously as possible), subject, however, to the
21
appropriate vote of the respective stockholders or stockholder, as the case may
be, of Taj Holding, THCR and Merger Sub.
Section 8.03. Registration of Securities. Each of the parties hereto
shall use its reasonable efforts to prepare promptly and file with the SEC,
shall furnish such information required to be included in, and shall cooperate
in the preparation of, such registration statements under the Securities Act and
Schedules 13E under the Exchange Act, and to cause such registration statements
to be declared effective, as applicable, as shall be required to finance the
Merger Transaction and to register the shares of THCR Common Stock issuable
pursuant to the terms of this Merger Agreement. Each of the parties hereto
shall use its reasonable efforts to cause such registration statements and
schedules to comply as to form in all material respects with the provisions of
the Securities Act and the Exchange Act, respectively.
Section 8.04. Access to Information; Confidentiality. (a) Each of the
parties hereto shall afford to the other parties hereto and to their
accountants, counsel and other representatives full access during normal
business hours (and at such other times as the parties may mutually agree)
throughout the period until the Effective Time to all of its properties, books,
contracts, commitments, records and personnel and, during such period, each
shall furnish promptly to the others (i) a copy of each report, schedule and
other document filed or received by it pursuant to the requirements of federal
or state securities laws or Gaming Laws, and (ii) all other information
concerning its business, properties and personnel, both past and present, as
such party may reasonably request.
(b) A Receiving Party shall (i) keep confidential and not disclose or
reveal to any Person, other than those employed by the Receiving Party or acting
on the Receiving Party's behalf and directly participating in the performance of
such party's obligations under this Merger Agreement, all Confidential
Information, (ii) cause their respective affiliates and the directors, officers,
employees, agents, advisors and controlled or controlling Persons of such party
and its affiliates to observe the terms of this Section and to keep confidential
and not disclose or reveal to any Person all Confidential Information, and (iii)
not use Confidential Information for any purpose other than in connection with
the transactions contemplated by this Merger Agreement and in a manner approved
by the Disclosing Party.
(c) In the event that a Receiving Party is requested or required by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process or required (as advised in writing by
its outside counsel) to disclose any of the Confidential Information, the
Receiving Party shall provide the Disclosing Party with prompt written notice so
that it may seek a protective order or other appropriate remedy. In the event
such protection or other remedy is not obtained, the Receiving party may
disclose such Confidential Information pursuant to such interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process or other law; provided, however, that the Receiving Party shall
exercise best efforts to obtain assurance that confidential treatment will be
accorded to such Confidential Information.
(d) Without prejudice to the rights and remedies otherwise available to a
Disclosing Party, a Disclosing Party shall be entitled to equitable relief by
way of injunction if the Receiving Party or any of the Receiving Party's
affiliates and the directors, officers, employees, agents, advisors and
controlled or controlling Persons of such Receiving Party and its affiliates
breach or threaten to breach any of the provisions of this Section.
Section 8.05. Notification of Certain Matters. Taj Holding, THCR and
Merger Sub shall give prompt notice to each other of:
(i) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated by this Merger Agreement;
(ii) any notice or other communication from any governmental or regulatory
agency or authority in connection with the transactions contemplated by this
Merger Agreement;
(iii) any action, suit, claim, investigation or proceeding commenced or,
to its knowledge, threatened against, relating to or involving or otherwise
affecting Taj Holding, THCR or any of their Subsidiaries, which is
22
reasonably likely to (A) have a Taj Holding Material Adverse Effect, THCR
Material Adverse Effect or Merger Sub Material Adverse Effect, as the case may
be, or (B) prevent the consummation of the transactions contemplated by this
Merger Agreement or cause any of such transactions to be rescinded following
consummation;
(iv) the occurrence, or failure to occur, of any event or change in
circumstances where such occurrence or failure to occur would be likely to cause
any representation or warranty contained in this Merger Agreement to be untrue
or inaccurate in any material respect at any time from the date hereof to the
Effective Time; and
(v) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that no such notification shall affect the
representations or warranties of the parties or the conditions to the
obligations of the parties hereunder.
Section 8.06. HSR Act. The Parties shall use their best efforts to file
or cause to be filed as soon as practicable notifications under the HSR Act in
connection with the Merger, and to respond as promptly as practicable to any
inquiries received from the Federal Trade Commission and the Antitrust Division
of the Department of Justice for additional information or documentation and to
respond as promptly as practicable to all inquiries and requests received from
any State Attorney General or other governmental authority in connection with
antitrust matters.
Section 8.07. Bond Redemption. Taj Holding shall take all necessary
actions to cause the Bond Redemption to occur immediately after the Effective
Time.
ARTICLE IX
CONDITIONS TO THE MERGER
Section 9.01. Conditions to the Obligations of Each Party. The respective
obligations of Taj Holding, THCR and Merger Sub to consummate the transactions
contemplated by this Merger Agreement are subject to the fulfillment at or prior
to the Effective Time of each of the following conditions, any or all of which
may be waived in whole or in part, to the extent permitted by applicable law:
(i) this Merger Agreement shall have been duly approved and adopted by the
affirmative vote of a majority of the outstanding shares of the Taj Holding
Class B Common Stock and Taj Holding Class C Common Stock, each voting as a
separate class, in accordance with the DGCL and the certificate of incorporation
of Taj Holding;
(ii) this Merger Agreement shall have been duly approved and adopted by the
affirmative vote of a majority of the outstanding shares of Taj Holding Class A
Common Stock, voting as a separate class;
(iii) the Merger Transaction shall have been duly approved and adopted by
the affirmative vote of a majority of the outstanding shares of THCR Common
Stock and THCR Class B Common Stock, voting as a single class, in accordance
with the DGCL and the certificate of incorporation of THCR;
(iv) the Merger Transaction shall have been duly approved by the
affirmative vote of a majority of the outstanding shares of THCR Common Stock
(excluding officers and directors of THCR and their affiliates), voting as a
separate class;
(v) all filings required to be made prior to the Effective Time with, and
all consents, approvals, permits and authorizations required to be obtained
prior to the Effective Time from, governmental and regulatory authorities
(including, without limitation, Gaming Authorities) in connection with the
execution and delivery of this Merger Agreement and the consummation of the
transactions contemplated hereby by Taj Holding, THCR and Merger Sub shall have
been made or obtained (as the case may be) without restrictions, except where
the failure to obtain such consents, approvals, permits and authorizations could
not be reasonably be expected to have a Taj Holding Material Adverse Effect or a
THCR Material Adverse Effect (assuming the merger has taken place);
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(vi) no court or governmental or regulatory authority of competent
jurisdiction (including, without limitation, Gaming Authorities) shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order (whether temporary, preliminary or
permanent) or taken any action that prohibits the consummation of the
transactions contemplated by this Merger Agreement; provided, however, that the
parties invoking this condition shall use their best efforts to have any such
judgment, decree, injunction or order vacated;
(vii) the shares of THCR Common Stock to be issued pursuant to the Merger
shall have been approved for listing on the NYSE, subject to official notice of
issuance; and
(viii) the waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated.
Section 9.02. Conditions to the Obligation of Taj Holding. The obligation
of Taj Holding to consummate the transactions contemplated by this Merger
Agreement is subject to the fulfillment at or prior to the Effective Time of
each of the following conditions, any or all of which may be waived in whole or
in part by Taj Holding to the extent permitted by applicable law:
(i) the Taj Funding Offering shall have been consummated on terms
reasonably acceptable to Taj Holding;
(ii) the consent of certain of Taj Associates' creditors necessary to
consummate the Merger Transaction shall have been obtained;
(iii) Taj Holding LLC or any other Person to which part or all of the
assets of Taj Holding or any of its Subsidiaries has been or will be transferred
shall have assumed (without releasing the Surviving Corporation or TM/GP) the
indemnification and other obligations of the Surviving Corporation and TM/GP set
forth in Section 7.04 hereof;
(iv) each of THCR and Merger Sub shall have performed in all material
respects all of its respective obligations hereunder required to be performed by
them at or prior to the Effective Time;
(v) each of the representations and warranties of each of THCR and Merger
Sub contained in this Merger Agreement and in any certificate or other writing
delivered by THCR and Merger Sub pursuant hereto shall be true in all material
respects at and as of the Effective Time, as if made at and as of such time
(except to the extent it relates to a particular date); and
(vi) Taj Holding shall have received a certificate from THCR and Merger
Sub, signed by an executive officer of THCR and Merger Sub, respectively, to the
effect set forth in clauses (iv) and (v) of this Section.
Section 9.03. Conditions to the Obligations of THCR and Merger Sub. The
obligation of each of THCR and Merger Sub to consummate the transactions
contemplated by this Merger Agreement is subject to the fulfillment at or prior
to the Effective Time of each of the following conditions, any or all of which
may be waived in whole or in part by THCR to the extent permitted by applicable
law:
(i) the Market Value of the THCR Common Stock shall be $20 or more;
(ii) the THCR Offering and the Taj Funding Offering shall have been
consummated on terms acceptable to THCR;
(iii) the purchase of the Specified Parcels shall have been consummated on
terms acceptable to THCR, the obligations relating to the outstanding
indebtedness of Realty Corp. to First Fidelity shall have been satisfied and the
releases of the Liens and guarantees relating to such indebtedness shall have
been obtained;
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(iv) the payment to Bankers Trust of $10 million, contemplated as part of
the Merger Transaction, shall have been made and the releases of the Liens and
guarantees that Bankers Trust has with respect to Taj Associates (including
Trump's direct and indirect ownership interest therein) and with respect to the
TTMI Note shall have been obtained;
(v) Xxxxx shall have contributed, or caused to be contributed, to THCR
Holdings and Taj Holdings LLC all of his direct and indirect ownership interests
in Taj Associates on terms acceptable to THCR;
(vi) the number of shares of Taj Holding Class A Common Stock for which
written demand for appraisal has been properly made pursuant Section 262 of the
DGCL shall have not exceeded 5% of the total number of shares of Taj Holding
Class A Common Stock outstanding immediately prior to the Effective Time;
(vii) the THCR Registration Statement shall have been declared effective
and no stop order suspending effectiveness shall have been issued, no action,
suit, proceeding or investigation by the SEC to suspend the effectiveness
thereof shall have been initiated and be continuing, and all necessary approvals
under blue sky or other state securities laws, the Securities Act or the
Exchange Act relating to the issuance or trading of the THCR Common Stock shall
have been received;
(viii) the consent of certain of Trump's creditors necessary to consummate
the Merger Transaction shall have been obtained;
(ix) Taj Holding shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the
Effective Time;
(x) each of the representations and warranties of Taj Holding contained in
this Merger Agreement and in any certificate or other writing delivered by Taj
Holding pursuant hereto shall be true in all material respects at and as of the
Effective Time, as if made at and as of such time (except to the extent it
relates to a particular date); and
(xi) THCR and Merger Sub shall have received a certificate signed by an
executive officer of Taj Holding to the effect set forth in clauses (ix) and (x)
of this Section.
ARTICLE X
TERMINATION
Section 10.01. Termination. This Merger Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time (whether
before or after approval of this Merger Agreement by the respective stockholders
of Taj Holding or THCR):
(i) by joint written consent of Taj Holding and THCR;
(ii) by Taj Holding if any of the conditions specified in Sections 9.01 or
9.02 have not been satisfied or waived by Taj Holding at such time as such
condition is no longer capable of satisfaction;
(iii) by THCR and Merger Sub if any of the conditions specified in
Sections 9.01 or 9.03 have not been satisfied or waived by THCR and Merger Sub
at such time as such condition is no longer capable of satisfaction;
(iv) by Taj Holding, acting through the Taj Holding Class B Directors, if
the Taj Holding Class B Directors shall have withdrawn or modified their
approval or recommendation of this Merger Agreement or the Merger in order to
permit Taj Holding to execute an agreement to effect an Acquisition Proposal
determined by the Taj Holding Class B Directors to be more favorable to the Taj
Holding stockholders than the transactions contemplated hereby; or
(v) by either party if the Merger has not been consummated on or before
June 30, 1996; provided, however, that a party may not terminate this Merger
Agreement pursuant to this clause if the failure of such party to fulfill any
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of its obligations under this Merger Agreement shall have been the reason that
the Merger shall not have been consummated on or before said date.
Section 10.02. Effect of Termination. In the event of termination of this
Merger Agreement pursuant this Article, this Merger Agreement shall forthwith
terminate and (except for the willful breach of this Merger Agreement by any
party hereto) there shall be no liability on the part of any party hereto;
provided, however, that Sections 3.14, 4.14, 8.04(b), (c) and (d), 10.02, 11.05,
11.06, 11.07, 11.09, 11.11 and 11.13 shall survive the termination of this
Merger Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile or similar writing)
and shall be given:
(i) if to Taj Holding to:
Taj Mahal Holding Corp.
0000 Xxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
with copies to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(ii) if to THCR or Merger Sub to:
Xxxxx Hotels & Casino Resorts, Inc.
Mississippi Avenue and Xxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
with copies to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
or such other address or facsimile number as such party may hereafter specify by
notice to the other parties hereto. Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section and the
appropriate confirmation is provided, (ii) if given via United States mail,
three days after such notice is deposited in the mail in a postage pre-paid
envelope or (iii) if given by any other means, when delivered at the address
specified in this Section.
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Section 11.02. Survival. None of the representations, warranties,
agreements or covenants contained herein shall survive the Effective Time,
except for the agreements contained in Articles I and II, Sections 3.14, 4.14,
7.04, 8.02, 8.04(b), (c) and (d), 11.02, 11.05, 11.06, 11.07, 11.09, 11.11,
11.13 and the last sentence of Section 11.03.
Section 11.03. Amendment. Any provision of this Merger Agreement may be
amended by the parties hereto by action of each of their respective Boards of
Directors, at any time prior to the Effective Time; provided, however, that any
such amendment made after the adoption of this Merger Agreement by the
stockholders of Taj Holding or THCR shall not, without further approval of such
stockholders (i) alter or change the amount, kind or manner of payment of the
Merger Consideration, (ii) alter or change any term of the certificate of
incorporation of the Surviving Corporation (except as otherwise provided in this
Merger Agreement) or (iii) change any other terms or conditions of this Merger
Agreement, if any of such changes, alone or in the aggregate, would materially
and adversely affect the stockholders of Taj Holding or THCR. Any amendment to
this Merger Agreement shall be in writing signed by all the parties hereto.
Section 11.04. Waiver. At any time prior to the Effective Time, Taj
Holding, THCR and Merger Sub may, unless otherwise set forth in this Merger
Agreement, (i) extend the time for the performance of any agreement of the other
party or parties hereto, (ii) waive any accuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto or
(iii) waive compliance with any agreement or condition of the other party or
parties hereto contained herein. Any agreement on the part of any party to any
such extension or waiver shall be effective only if set forth in a writing
signed on behalf of such party and delivered to the other party or parties. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other right, power or privilege.
Section 11.05. Successors and Assigns. The provisions of this Merger
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that no party
may assign or otherwise transfer any of its rights under this Merger Agreement
without the consent of each of the other parties hereto.
Section 11.06. Governing Law. Except to the extent set forth in Section
11.07 or in the DGCL, this Merger Agreement shall be construed in accordance
with and governed by the internal laws of the State of New York without regard
to principles of conflict of laws.
Section 11.07. Gaming Laws. Each of the provisions of this Merger
Agreement is subject to and shall be enforced in compliance with the Gaming
Laws.
Section 11.08. Integration. This Merger Agreement embodies the entire
agreement and understanding among the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 11.09. Third Party Beneficiaries. This Merger Agreement
(including the documents and instruments referred to herein) is not intended to
confer upon any other Person any rights or remedies hereunder; provided,
however, the Taj Holding Indemnified Parties shall be third party beneficiaries
of Section 7.04 hereof.
Section 11.10. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Merger Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Merger
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section 11.11. Remedies Cumulative. All rights, powers and remedies
provided under this Merger Agreement otherwise available at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
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Section 11.12. Publicity. So long as this Merger Agreement is in effect,
each of the parties agrees to consult with each other in issuing any press
release or otherwise making any public statement with respect to the Merger, and
none of them shall issue any press release or make any public statement prior to
such consultation, except as may be required by law or by obligations pursuant
to any listing agreement with any national securities exchange. The
commencement of litigation relating to this Merger Agreement or any proceedings
in connection therewith shall not be deemed a violation of this Section.
Section 11.13. Fees and Expenses. Whether or not the Merger is
consummated, all costs and expenses incurred in connection with this Merger
Agreement and the transactions contemplated hereby shall be paid equally by Taj
Holding and THCR; provided, however, that all costs and expenses incurred in
connection with (i) printing, filing and distributing the Equity S-1 and (ii)
any filings pursuant to Section 8.06 hereof, shall be borne solely by THCR.
Section 11.14. Headings; Counterparts; Effectiveness. The headings
contained in this Merger Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Merger Agreement. This
Merger Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Merger Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
TAJ MAHAL HOLDING CORP.
/s/ R. Xxxxx XxXxx
-------------------------
By: R. Xxxxx XxXxx
Title: Assistant Treasurer and Acting Chief
Operating Officer of Xxxxx Xxx Xxxxx
Associates
XXXXX HOTELS & CASINO RESORTS, INC.
/s/ Xxxxxxxx X. Xxxxx
----------------------------
By: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
THCR MERGER CORP.
/s/ Xxxxxxxx X. Xxxxx
----------------------------
By: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
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