AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") dated as of May 5, 2006, by and among Pinnacle Entertainment, Inc.,
a Delaware corporation ("Pinnacle"), PNK Development 1, Inc., a Delaware
corporation and a wholly owned subsidiary of Pinnacle ("Merger Sub"), and Aztar
Corporation, a Delaware company ("Aztar").
WHEREAS, Pinnacle, Merger Sub and Aztar are parties to that
certain Agreement and Plan of Merger dated as of March 13, 2006, as amended and
restated as of April 28, 2006 (the "Merger Agreement");
WHEREAS, pursuant to Section 7.03 of the Merger Agreement, the
parties desire to amend the Merger Agreement as provided in this Amendment; and
WHEREAS, the respective Boards of Directors of Pinnacle,
Merger Sub and Aztar have approved this Amendment and the other transactions
contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto agree as follows:
Section 1. Amendment to Common Stock Merger Consideration. (a) The
fourth recital of the Merger Agreement is hereby amended to read as follows:
"WHEREAS, this Agreement has been duly and validly amended
by a further amendment dated as of May 5, 2006, duly
executed and delivered by the parties hereto (the "Fourth
Amendment");
"WHEREAS, in the Merger, subject to the terms of Article
II, each share of common stock, $.01 par value per share,
of Aztar (the "Aztar Common Stock") will be converted into
the right to receive (x) $47.00 per share in cash and (y) a
number of shares of common stock, $.10 par value per share,
of Pinnacle (the "Pinnacle Common Stock") equal to the
Exchange Ratio (as defined in Section 8.03);"
(b) Section 2.01(b) of the Merger Agreement is hereby amended
and replaced in its entirety with the following:
Conversion of Aztar Common Stock. Subject to Section
2.02(e), each issued and outstanding share of Aztar Common
Stock (other than shares to be canceled in accordance with
Section 2.01(a) and other than Aztar Dissenting Shares (as
defined in Section 2.03(a)) shall be converted into the
right to receive (x) $47.00 per share in cash and (y) a
number of shares of Pinnacle Common Stock equal to the
Exchange Ratio (together, the "Common Stock Merger
Consideration"). As of the Effective Time, all such shares
of Aztar Common Stock shall no longer be outstanding and
shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing any
such shares of Aztar Common Stock shall cease to have any
rights with respect thereto, except the right to receive
the Common Stock Merger Consideration to be paid therefor
upon the surrender of such certificate in accordance with
Section 2.02, without interest.
Section 2. Amendments to the Preferred Stock Merger Consideration.
(a) The fifth recital of the Merger Agreement is hereby amended and replaced
in its entirety with the following:
WHEREAS, in the Merger, subject to the terms of Article II,
each share of Series B ESOP Convertible Preferred Stock,
$.01 par value per share (the "Aztar Preferred Stock") will
be converted into the right to receive (x) $497.09 per
share in cash and (y) a number of shares of Pinnacle Common
Stock equal to the product of the Exchange Ratio and 10.576
(such product, the "Preferred Exchange Ratio"); and
(b) Section 2.01(c) of the Merger Agreement is hereby amended
and replaced in its entirety with the following:
Conversion of Aztar Preferred Stock. Subject to Section
2.02(e), each issued and outstanding share of Aztar
Preferred Stock (other than shares to be canceled in
accordance with Section 2.01(a) and other than Aztar
Dissenting Shares) shall be converted into the right to
receive (x) $497.09 per share in cash and (y) a number of
shares of Pinnacle Common Stock equal to the Preferred
Exchange Ratio, provided that with respect to any share of
Aztar Preferred Stock that has elected to receive the
liquidation preference plus accrued and unpaid dividends in
accordance with the certification of designations,
preferences and rights of the Aztar Preferred Stock, each
such share shall be converted into the liquidation
preference thereof plus accrued and unpaid dividends as of
the Effective Time (together, the "Preferred Stock Merger
Consideration" and together with the Common Stock Merger
Consideration, the "Merger Consideration"). The liquidation
preference of a share of Aztar Preferred Stock is $100. As
of the date hereof, the accrued and unpaid dividends
thereon were less than $180,000 in the aggregate. As of the
Effective Time, all such shares of Aztar Preferred Stock
shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each
holder of a certificate representing any such shares of
Aztar Preferred Stock shall cease to have any rights with
respect thereto, except the right to receive the Preferred
Stock Merger Consideration upon the surrender of such
certificate in accordance with Section 2.02, without
interest.
Section 3. Clarification of Section 3.01(p). Section 3.01(p) of the
Merger Agreement is hereby amended to add the following at the end thereof:
Vote Required. The affirmative vote of the holders of
record of at least a majority of the outstanding shares of
Aztar Common Stock and Aztar Preferred Stock, voting
together as a single class, with respect to the adoption of
this Agreement is the only vote of the holders of any class
or series of the capital stock of Aztar or its subsidiaries
required to approve this Agreement, the Merger and the
other transactions contemplated hereby, including any of
the foregoing after giving effect to the Fourth Amendment.
No "fair price", "merger moratorium", "control share
acquisition", or other anti-takeover or similar statute or
regulation applies or purports to apply to this Agreement,
the Merger or the other transactions contemplated hereby,
including any of the foregoing after giving effect to the
Fourth Amendment, except for those which have been made not
applicable to this Agreement, the Merger and the other
transactions contemplated hereby (including any of the
foregoing after giving effect to the Fourth Amendment) by
valid action of the Board of Directors of Aztar prior to
the execution and delivery hereof. Prior to the execution
and delivery of the Fourth Amendment, the Board of
Directors of Aztar has taken all action necessary to assure
that (x) the Rights Agreement exempts Pinnacle and its
affiliates and associates (as defined therein) from the
operation of the provisions of the Rights Agreement, (y)
none of Pinnacle, or its affiliates or associates are or
will become an Acquiring Person (as defined in the Rights
Agreement) as a result of the execution, delivery and
performance of this Agreement (including any of the
foregoing after giving effect to the Fourth Amendment) and
(z) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
(including any of the foregoing after giving effect to the
Fourth Amendment) are exempt from the provisions thereof.
Aztar has taken such action as is necessary so that this
Agreement (after giving effect to the Fourth Amendment) is
not subject to the provisions of Article Ninth of its
Restated Certificate of Incorporation, as amended.
Section 4. Termination Fee and Termination Expenses. Section 5.07(b)
of the Merger Agreement is hereby amended and modified as follows:
(a) The reference to $49.575 million in such section
(including the definition of Termination Fee) is hereby
amended and modified to be $52.16 million.
(b) The reference to $16 million in such section (including
the definition of Termination Expenses) is hereby amended
and modified to be $25.84 million.
Section 5. Exchange Ratio: Option Amount. The respective definitions
of Exchange Ratio and Option Amount in Section 8.03 of the Merger Agreement are
hereby amended and restated to read in their entirety as follows:
"Exchange Ratio" means $4.00 divided by the Pinnacle
Amount; provided however that in no event shall the
Exchange Ratio be greater than 0.16584 or less than
0.11056.
"Option Amount" means the sum of (x) $47.00 and (y)
the product of the Exchange Ratio and the Pinnacle Amount.
Section 6. General Provisions.
(a) Modification; Full Force and Effect. Except as expressly
modified and superseded by this Amendment, the terms, representations,
warranties, covenants and other provisions of the Merger Agreement are and shall
continue to be in full force and effect in accordance with their respective
terms.
(b) References to the Merger Agreement. After the date hereof,
all references to "this Agreement," "the transactions contemplated by this
Agreement," the Merger Agreement and phrases of similar import, shall refer to
the Merger Agreement as amended by this Amendment (it being understood that all
references to "the date hereof" or "the date of this Agreement" shall continue
to refer to March 13, 2006). The Aztar Disclosure Letter as originally delivered
on March 13, 2006, shall continue to be the Aztar Disclosure Letter referred to
in the Merger Agreement.
(c) Definitions. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
(d) Other Miscellaneous Terms. The provisions of Article VIII
(General Provisions) of the Merger Agreement shall apply mutatis mutandis to
this Amendment, and to the Merger Agreement as modified by this Amendment, taken
together as a single agreement, reflecting the terms therein as modified hereby.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
PINNACLE ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chairman and CEO
PNK DEVELOPMENT 1, INC.
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chairman and CEO
AZTAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, CEO and President
