EXHIBIT 5
AGREEMENT AND PLAN OF MERGER
Dated as of April 17, 2000
among
PH CASINO RESORTS, INC.
HARVEYS CASINO RESORTS
and
HARVEYS ACQUISITION CORPORATION
SCHEDULES
EXHIBITS
Exhibit A Voting and Contribution Agreement
Exhibit B Pinnacle Merger Agreement
AGREEMENT AND PLAN OF MERGER dated as of April 17, 2000 (this
"Agreement"), among PH CASINO RESORTS, INC., a Delaware corporation
("PHCR"), HARVEYS CASINO RESORTS, a Nevada corporation ("Harveys"), and
HARVEYS ACQUISITION CORPORATION, a Nevada corporation ("Harveys Acq Corp").
W I T N E S S E T H
WHEREAS, PHCR is a wholly-owned subsidiary of Harveys and
Harveys Acq Corp is a wholly-owned subsidiary of PHCR;
WHEREAS, the respective Boards of Directors of Harveys and
Harveys Acq Corp have determined that the merger of Harveys Acq Corp with
and into Harveys (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement, is advisable and in the best
interests of their respective corporations and stockholders, and have
approved this Agreement;
WHEREAS, the entry into this Agreement and the consummation of
the transactions herein described are expressly conditional on the
simultaneous entry into an agreement and plan of merger (the "Pinnacle
Merger Agreement") among Pinnacle Entertainment, Inc., a Delaware
corporation ("Pinnacle"), Pinnacle Acquisition Corporation, a Delaware
corporation ("Pinnacle Acq Corp") and PHCR;
WHEREAS, for Federal income tax purposes, the parties intend
that the Merger and the merger of Pinnacle Acq Corp with and into Pinnacle
(the "Pinnacle Merger") pursuant to the Pinnacle Merger Agreement, viewed
as a single transaction or as a series of transactions pursuant to a single
plan, qualifies as an exchange under section 351 of the Internal Revenue
Code of 1986 (the "Code");
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS
Capitalized and certain other terms used in this Agreement
and not otherwise defined have the meanings set forth in the Pinnacle
Merger Agreement.
ARTICLE II
THE MERGER
SECTION 2.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement and the articles of merger or other
appropriate documents (in any such case, the "Articles of Merger") required
by law in connection with the Merger, and in accordance with the applicable
provisions of the Nevada Revised Statute, as amended (the "NRS"), Harveys
Acq Corp shall be merged with and into Harveys. Following the Merger,
Harveys shall continue as the surviving corporation (the "Harveys Surviving
Corporation") and the separate existence of Harveys Acq Corp will cease.
SECTION 2.02. Closing. The closing (the "Closing") of the
Merger will take place at 10:00 a.m., Los Angeles time, on a date (the
"Closing Date") to be specified by PHCR, which may be on, but shall be no
later than the third business day after, the day on which there shall have
been satisfaction or waiver of the conditions set forth in Article VIII, at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, unless another time date or place is
agreed to in writing by the parties hereto.
SECTION 2.03. Effective Time. On the Closing Date, or as soon
as practicable thereafter, the parties shall file the Articles of Merger
with the Secretary of State of the State of Nevada, in accordance with the
provisions of NRS section 92A.005 et seq. (the "Nevada Merger Law"), and
make all other filings or recordings required by law in connection with the
Merger. The Merger shall become effective at such time as the Articles of
Merger are duly filed with the Secretary of State of the State of Nevada,
or at such other later time as the parties shall agree and specify in the
Articles of Merger (the time the Merger becomes effective being the
"Effective Time").
SECTION 2.04. Effects of the Merger. The Merger shall have the
effects set forth in the Nevada Merger Law. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, all the
properties, rights, privileges, powers and franchises of Harveys and
Harveys Acq Corp shall vest in the Harveys Surviving Corporation, and all
debts, liabilities and duties of Harveys and Harveys Acq Corp shall become
the debts, liabilities and duties of the Harveys Surviving Corporation.
SECTION 2.05. Corporate Governance Documents. The Articles of
Incorporation of Harveys Acq Corp, as in effect immediately prior to the
Effective Time of the Merger, shall become the Articles of Incorporation of
the Harveys Surviving Corporation after the Effective Time, except that
such Articles of Incorporation shall be amended to provide that the name of
the Harveys Surviving Corporation shall be "Harveys Casino Resorts," and
thereafter may be amended in accordance with its terms and as provided by
law. The By-laws of Harveys Acq Corp as in effect immediately prior to the
Effective Time shall become the By-laws of the Harveys Surviving
Corporation and thereafter may be amended in accordance with their terms
and as provided by law.
SECTION 2.06. Directors. The directors of Harveys Acq Corp
immediately prior to the Effective Time shall become the directors of the
Harveys Surviving Corporation, and shall serve in such capacity until the
earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 2.07. Officers. The officers of Harveys immediately
prior to the Effective Time shall become the officers of the Harveys
Surviving Corporation, and shall serve in such capacity until the earlier
of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
SECTION 2.08. Further Actions. At and after the Effective Time,
Harveys Surviving Corporation shall take all action as shall be required in
connection with the Merger, including, but not limited to, the execution
and delivery of any further deeds, assignments, instruments or
documentation as are necessary or desirable to carry out the provisions of
this Agreement.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.01. Effect on Capital Stock of Harveys and Harveys
Acq Corp. As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of capital stock of Harveys
or any shares of capital stock of Harveys Acq Corp:
(a) Capital Stock of Harveys
(i) Each share of Class A Common Stock, par
value $.01 per share, of Harveys (the "Harveys Class A Common Stock")
(other than shares canceled in accordance with Section 3.01(c))
issued and outstanding immediately prior to the Effective Time shall
be converted into and become 1.25379 fully paid and nonassessable
shares of Class A Common Stock, par value $.01 per share, of PHCR
(the "PHCR Class A Common Stock").
(ii) Each share of Class B Common Stock, par
value $.01, of Harveys (the "Harveys Class B Common Stock") (other than
shares canceled in accordance with Section 3.01(c)) issued and
outstanding immediately prior to the Effective Time shall be
converted into and become 1.25379 fully paid and nonassessable shares
of Class B Common Stock, par value $.01 per share, of PHCR (the "PHCR
Class B Common Stock").
(b) Capital Stock of Harveys Acq Corp. Each share of
common stock, par value $.01 per share, of Harveys Acq Corp (the
"Harveys Acq Corp Common Stock") issued and outstanding immediately
prior to the Effective Time shall be converted into and become one
fully paid and nonassessable shares of common stock, par value $.01
per share, of Harveys Surviving Corporation (the "Harveys Surviving
Corporation Common Stock").
(c) Cancellation of Treasury Stock and Harveys Acq Corp
Owned Stock. Each share of Harveys Class A Common Stock and Harveys
Class B Common Stock that is owned by Harveys or by any Subsidiary of
Harveys and each share of Harveys Class A Common Stock and Harveys
Class B Common Stock that is owned by Harveys Acq Corp shall
automatically be canceled and retired and shall cease to exist.
SECTION 3.02. Exchange of Certificates.
(a) Exchange Agent. Immediately prior to the Effective
Time, Harveys Acq Corp shall designate a bank or trust to act as exchange
agent in the Merger (the "Exchange Agent").
(b) Exchange Procedure. As soon as reasonably practicable
after the Effective Time, the Harveys Surviving Corporation shall
cause the Exchange Agent to mail to each holder of record of a
certificate or certificates representing which immediately prior to
the Effective Time represented outstanding shares of Harveys Class A
Common Stock or Harveys Class B Common Stock (the "Certificates")
whose shares were converted into the right to receive PHCR Class A
Common Stock or PHCR Class B Common Stock, as applicable, pursuant to
Section 3.01 (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to
the Exchange Agent and shall be in such form and have such other
provisions as the Harveys Surviving Corporation may reasonably
specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for PHCR Class A Common Stock or PHCR
Class B Common Stock, as applicable. Upon surrender of a Certificate
for cancellation to the Exchange Agent together with such letter of
transmittal, duly executed, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the
number of shares into which the shares of capital stock theretofore
represented by such Certificate shall have been converted pursuant to
Sections 3.01 and 3.02, and the Certificate so surrendered shall
forthwith be cancelled.
(c) No Further Ownership Rights in Capital Stock. All
shares delivered upon the surrender of Certificates in accordance
with the terms of this Article III shall be deemed to have been paid
in full satisfaction of all rights pertaining to the shares of
capital stock theretofore represented by such Certificates, and there
shall be no further registration of transfers on the stock transfer
books of the Harveys Surviving Corporation of the shares of capital
stock which were outstanding immediately prior to the Effective Time.
If, after the Effective Time, Certificates are presented to the
Harveys Surviving Corporation or the Exchange Agent for any reason,
they shall be cancelled and exchanged as provided in this Article
III, except as otherwise provided by law.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. Registration Statement.
(a) PHCR shall as promptly as possible after the Closing,
and in no event later than 30 days after the date thereof, prepare
and file with the SEC an amendment (the "Amendment") to Harveys'
registration statement on Form 10. PHCR shall cause the Amendment to
comply as to form in all material respects with the applicable
provisions of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). PHCR agrees that the Amendment at the time it
is filed shall not include an untrue statement of 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 in which they were made, not misleading.
(b) As promptly as practicable, each party hereto shall
properly prepare and file any other filings required under the
Exchange Act, the Securities Act of 1933, as amended (the "Securities
Act") or any other Laws relating to the Merger or the Amendment
(collectively, "Other Filings").
SECTION 4.02. Reasonable Efforts. Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties agrees to
use all reasonable efforts to take, or cause to be taken (including through
its officers and directors and other appropriate personnel), all actions,
and to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Merger,
the Pinnacle Merger, the Voting and Contribution Agreement and the other
transactions contemplated by this Agreement, including (a) the obtaining of
all necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and
filings (including filings with Governmental Entities, if any) and the
taking of all reasonable steps as may be necessary to obtain Permits or
waivers from, or to avoid an action or proceeding by, any Governmental
Entity (including in respect of any Gaming Law), (b) the obtaining of all
necessary consents, approvals or waivers from third parties, (c) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of any of
the transactions contemplated by this Agreement, including seeking to have
any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed and (d) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this Agreement.
SECTION 4.03. At the Effective Time, all outstanding employee
stock options of Harveys (the "Harveys Options") shall be canceled and
shall be exchanged for options to purchase an number of shares of PHCR
Class A Common Stock or PHCR Class B Common Stock, as applicable (the
"Replacement Options"), equal to the product of (A) the number of Harveys
Options, multiplied by (B) 1.25379. Such Replacement Options shall have an
exercise price per share equal to (A) the exercise price of the Harveys
Options prior to the Merger, divided by (B) 1.25379. Such Replacement
Options shall otherwise have terms identical with those of the Harveys
Options.
SECTION 4.04. Tax Treatment. Each of Harveys, PHCR and Harveys
Acq Corp shall use its reasonable best efforts to cause the Merger to
qualify as an exchange governed by section 351 of the Code.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions to Each Party's Obligation To Effect
the Merger. The respective obligations of each party to effect the Merger
is subject to the satisfaction or waiver on or prior to the Closing Date of
the following conditions:
(a) No Injunctions or Restraints. No statute, rule,
regulation, executive order, decree, temporary restraining order,
preliminary or permanent injunction or other order enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other
legal restraint or prohibition preventing the consummation of the
Merger or the transactions contemplated thereby (including the
Pinnacle Merger) shall be in effect; provided, in the case of a
decree, injunction or other order, each of the parties shall have
used their best efforts to prevent the entry of any such injunction
or other order and to appeal as promptly as possible any decree,
injunction or other order that may be entered.
(b) Gaming Authority Approval. All licenses, permits,
registrations, authorizations, consents, waivers, orders, findings of
suitability or other approvals required to be obtained from, and all
filings, notices or declarations required to be made with, any Gaming
Authority to permit Harveys Acq Corp and Harveys to consummate the
Merger and to permit the Harveys Surviving Corporation and each of
its Subsidiaries to conduct their businesses in the jurisdictions
regulated by such Gaming Authorities after the Effective Time in the
same manner as conducted by Harveys and its Subsidiaries prior to the
Effective Time (collectively, the "Gaming Approvals") shall have been
obtained or made, as applicable; provided that no such Gaming
Approval shall obligate Harveys Acq Corp, or any of its Affiliates to
obtain any consent, approval, license, waiver, order, decree,
determination of suitability or other authorization with respect to
any limited partner of any Affiliate of Harveys Acq Corp.
(c) Consents. All consents, waivers, orders, approvals,
authorizations, registrations, findings of suitability and action of
any Governmental Entity shall have been obtained or made, free of any
condition.
SECTION 5.02. Conditions to Obligations of Harveys Acq Corp.
The obligations of Harveys Acq Corp to effect the Merger are further
subject to the satisfaction or waiver on or prior to the Closing Date of
the following conditions:
(a) Contribution by Stockholders. The transactions
contemplated by the Voting and Contribution Agreement shall have been
consummated immediately prior to the Effective Time.
SECTION 5.03. Conditions to Obligations of Harveys. The
obligations of Harveys to effect the Merger are further subject to the
satisfaction or waiver on or prior to the Closing Date of the following
condition:
(a) Compliance Committee. Harveys shall have received any
and all consents necessary from the Harveys Casino Resorts Compliance
Committee.
(b) Pinnacle Merger Agreement. All conditions to closing
contained in the Pinnacle Merger Agreement shall have been satisfied or
waived by the appropriate party thereto.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01. Termination. This Agreement may be terminated at
any time prior to the Effective Time by written consent of each of the
parties.
SECTION 6.02. Amendment. This Agreement may be amended by the
mutual agreement of the parties at any time. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties.
SECTION 6.03. Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties of the other party
contained in this Agreement or in any document delivered pursuant to this
Agreement or waive compliance by the other party with any of the agreements
or conditions contained in this Agreement. Any agreement on the part of a
party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. Notices. All notices, requests, claims, demands
and other communications under this Agreement shall be in writing and shall
be deemed given if delivered personally or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) if to Harveys, Harveys Acq Corp or PHCR, to:
c/o Harveys Casino Resorts
Xxxxxxx 00 & Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
and
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 213-687-5600
SECTION 7.02. Interpretation. When a reference is made in this
Agreement to an Article, Section or Schedule, such reference shall be to an
Article or Section of or a Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation." The Pinnacle Merger
Agreement and the consummation of the transactions contemplated by the
Pinnacle Merger Agreement and the Voting and Contribution Agreement and the
consummation of the transactions contemplated by such Voting and
Contribution Agreement are transactions contemplated by this Agreement. To
the extent any restriction on the activities of Harveys or its Subsidiaries
under the terms of this Agreement requires prior approval under any Gaming
Law, such restriction shall be of no force or effect unless and until such
approval is obtained. If any provision of this Agreement is illegal or
unenforceable under any Gaming Law, such provision shall be void and of no
force or effect.
SECTION 7.03. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 7.04. Entire Agreement; No Third-Party Beneficiaries.
This Agreement and the Voting and Contribution Agreement constitute the
entire agreements, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
of these agreements and are not intended to confer upon any Person other
than the parties any rights or remedies hereunder.
SECTION 7.05. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEVADA,
WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF LAW.
SECTION 7.06. Gaming Laws. Each of the provisions of this
Agreement is subject to and shall be enforced in compliance with the Gaming
Laws.
SECTION 7.07. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties.
[signature pages follow]
IN WITNESS WHEREOF, PHCR, Harveys, and Harveys Acq Corp have
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
PH CASINO RESORTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
HARVEYS CASINO RESORTS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
HARVEYS ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
