Exhibit 2.1
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of November
30, 2006 (this "AMENDMENT"), is by and among Lone Star Steakhouse & Saloon,
Inc., a Delaware corporation (the "COMPANY"), Lone Star U.S. Acquisitions LLC, a
Delaware limited liability company ("PURCHASER") and COI Acquisition Corp., a
Delaware corporation ("MERGER SUB") and an affiliate of Purchaser. All
capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the Merger Agreement.
RECITALS
WHEREAS, the parties have entered into that certain Agreement and Plan of
Merger, dated as of August 18, 2006 (the "MERGER AGREEMENT"); and
WHEREAS, the parties desire to amend the Merger Agreement in the manner
more particularly described below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties, and agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1.01. AMENDMENT TO THE MERGER AGREEMENT. The dollar amount "$6.33"
set forth in Section 1.4(b) of the Merger Agreement is hereby amended to be
"$6.58".
Section 1.02 GENERAL PROVISIONS.
(a) GOVERNING LAW. This Amendment shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in accordance
with the internal laws of, the State of Delaware, without regard to the
conflicts of law principles thereof. In any action between any of the parties
arising out of or relating to the subject matter of this Amendment: (a) each of
the parties irrevocably and unconditionally consents and submits to the
exclusive jurisdiction and venue of the state and federal courts located in the
State of Delaware (and agrees not to commence any such action except in such
courts) and irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action brought in such court has been
brought in an inconvenient forum; (b) if any such action is commenced in a state
court, then, subject to applicable law, no party shall object to the removal of
such action to any federal court located in the State of Delaware; (c) each of
the parties irrevocably waives the right to trial by jury and (d) each of the
parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
party is to receive notice in accordance with the Merger Agreement.
(b) COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which together shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(c) SEVERABILITY. In case any provision in this Amendment shall be held
invalid, illegal or unenforceable in a jurisdiction, such provision shall be
modified or deleted, as to the jurisdiction involved, only to the extent
necessary to render the same valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby nor shall the validity, legality or
enforceability of such provision be affected thereby in any other jurisdiction.
(d) BINDING AGREEMENT; NO ASSIGNMENT. This Amendment shall be effective
only if it is signed by the Purchaser, Merger Sub and the Company. Thereafter,
this Amendment shall be binding upon and inure to the benefit of the Purchaser,
Merger Sub, the Company and each of their successors and assigns. No party to
this Amendment shall assign this Amendment, by operation of law or otherwise, in
whole or in part, without the prior written consent of the other parties hereto.
(e) NO OTHER AMENDMENTS. Except as set forth herein, the terms and
provisions of the Merger Agreement will remain in full force and effect in
accordance with their terms. On or after the date of this Amendment, each
reference in the Merger Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import referring to the Merger Agreement shall mean
and be a reference to the Merger Agreement as amended by this Amendment, and
this Amendment shall be deemed to be a part of the Merger Agreement.
2
IN WITNESS WHEREOF, the Company, Purchaser and Merger Sub have duly
executed this Amendment, all as of the date first written above.
LONE STAR STEAKHOUSE & SALOON,
INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx, Chief Executive Officer
LONE STAR U.S. ACQUISITIONS LLC, a
Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, Vice President
COI ACQUISITION CORP., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, Vice President
