EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Amendment No.1, dated as of February 24, 2003 (this "Amendment") to the
Agreement and Plan of Merger (the "Agreement") entered into as of December 23,
2002, by and among MTR Gaming Group, Inc., a Delaware corporation ("Parent"),
Racing Acquisition, Inc., an Ohio corporation and wholly owned subsidiary of
Parent ("Merger Subsidiary"), and Scioto Downs, Inc., an Ohio corporation (the
"Company"). Parent, Merger Subsidiary and the Company are referred to
collectively herein as (the "Parties").
RECITALS
WHEREAS, Section 5.04 of the Agreement provides that the Parent shall
have a period of thirty days to determine the suitability of the transactions
contemplated therein in its sole and absolute discretion (the "Due Diligence
Period") and further provides that the Parent shall be entitled to reasonable
extensions of the Due Diligence Period (not to exceed an aggregate of thirty
days) to the extent necessary for third parties to complete their studies or
inspections.
WHEREAS, the Parties would like to further extend the Due Diligence
Period to facilitate the resolution of certain matters relating to the studies
and inspections being made by the Company.
WHEREAS, as described herein, the Parties would like to make certain
other amendments to the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements as set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. INCORPORATION. The recitals set forth above are incorporated herein as
though more fully set forth. And, unless otherwise provided, all defined terms
shall have the meaning ascribed in the Agreement.
2. SECTION 5.04. The Due Diligence Period shall be extended from February
24, 2003 up to and including March 11, 2003.
3. SECTION 6.03. The following provision shall be added as Section
6.03(e):
"(e) one of the following shall have occurred: (i) the
participation of Mara Enterprises, Inc. ("Mara") in the multiple-employer
pension plan which the Company sponsors (the "Pension Plan") shall have been
separated in a manner such that the Company shall neither be jointly and
severally liable, nor be contingently liable, with respect to any funded status
deficit attributable to Mara or (ii) in the event Scioto shall have submitted to
all governmental authorities having jurisdiction over the Pension Plan all
filings required to initiate the separation of the Pension Plan but shall be
unable to effect such separation due to the absence of decision by those
entities having jurisdiction over such separation, then Mara shall escrow
amounts sufficient to effect a separation. To effect such an escrow, Mara shall
contemporaneously with the Closing deposit with a licensed
and bonded trust company to hold in escrow for the protection of the Parent an
amount equal to the funded status deficit attributable to Mara together with an
amount equal to two (2) times Mara's pro rata share of administrative costs and
Mara's ongoing funding obligations (all of which may be estimated) for the next
twelve (12) months together with the entry into an agreement by Mara with Parent
whereby Mara shall indemnify and hold Parent harmless against any and all
liability arising from any funded status deficit attributable to Mara. For
purposes of this Amendment, the "funded status deficit" attributable to Mara
shall mean the excess of the projected benefit obligation attributable to Mara
over the fair value of the plan assets allocable to Mara."
4. ENTIRE AGREEMENT. Except as expressly amended or modified by the terms
of this Amendment, the Agreement shall remain unmodified and in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, or have caused this Amendment to be duly executed with legal and
binding effect by their respective authorized officers, in their individual
capacity, as of the date first written above.
SCIOTO DOWNS, INC.
by: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: President
MTR GAMING GROUP, INC.
by: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
RACING ACQUISITION, INC.
by: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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