SECOND AMENDMENT TO MERGER AGREEMENT
This SECOND AMENDMENT TO MERGER AGREEMENT dated as of
September 27, 1996 (this "Amendment"), is made by and among GEM
GAMING, INC., a Nevada corporation ("Gem"), AMERISTAR CASINOS,
INC., a Nevada corporation ("Ameristar"), AMERISTAR CASINO LAS
VEGAS, INC., a Nevada corporation and a wholly owned subsidiary
of Ameristar ("ACLV"), XXXXXX X. XXXXXX, an individual and in his
capacity as Trustee of the Karizma Trust created under that
certain Trust Agreement, dated July 2, 1991, as amended
("Xxxxxx"), and XXXXXXX X. XXXXXXXXXXX, an individual
("Magliarditi," and together with Xxxxxx, the "Gem Individuals").
Recitals
A. WHEREAS, Gem, Ameristar, ACLV and the Gem
Individuals are parties to that certain Merger Agreement dated as
of May 31, 1996, as amended by that certain First Amendment to
Merger Agreement dated as of July 2, 1996 (the "Merger
Agreement"), pursuant to which Gem will be merged with and into
ACLV.
B. WHEREAS, Xxxxxx has concluded that he has
philosophical disagreements with Ameristar's managerial style,
and as a consequence of such conclusion, and certain other
reasons, Gem, Ameristar, ACLV and the Gem Individuals now desire
to further amend the Merger Agreement as set forth herein.
Agreement
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained in this Amendment,
and intending to be legally bound hereby, Gem, Ameristar, ACLV
and the Gem Individuals hereby agree as follows:
Article 1
Definitions
1.1 Undefined Terms. Except for those terms defined
herein, all capitalized terms shall have the meanings set forth
in the Merger Agreement.
1.2 Additional Terms. The following terms are hereby
added to the Merger Agreement and shall have the following
meanings:
"Additional Stock" shall mean Ameristar Common Stock
included in the Offering that is not Post-Merger Offering
Stock, as designated by Ameristar by written notice to
Xxxxxx and Xxxxxxxxxxx on or before the closing of the
Offering. The amount of Additional Stock that may be
included in the Offering is subject to limitation as set
forth in Section 2.10(a) of the Merger Agreement.
"Closing Date Balance Sheet" shall mean the unaudited
Balance Sheet of Gem dated as of the August 31, 1996 and
prepared in accordance with GAAP and Regulation S-X.
"Gem Individuals' Notes Escrow Agreement" shall mean
that certain Gem Individuals' Notes Escrow Agreement and
Escrow Instructions dated as of the Closing Date and
executed by the Escrow Agent, Ameristar, Magliarditi and
Xxxxxx.
"Gem Individuals' Notes" shall mean the "Xxxxxx Note"
and the "Magliarditi Note," as such terms are defined in
Section 2.10 of the Merger Agreement (as amended by the
Second Amendment).
"Gem Individuals' Share of Completion Differential"
shall be deemed to mean Four Million Dollars ($4,000,000)
solely for the purpose of calculating the amounts payable to
the Gem Individuals in accordance with Section 2.10 hereof.
The Gem Individuals' Share of Completion Differential
represents the parties' settlement and compromise with
respect to the calculation of the "Adjustment Amount" (as
said term is used in the Merger Agreement). The settlement
and compromise with respect to the Gem Individuals' Share of
Completion Differential shall not be deemed a representation
or acknowledgment by any party with respect to the facts
underlying the calculation of the "Adjustment Amount," it
being understood that each party shall have the right to
continue to rely upon the accuracy of the respective
warranties made in its favor by the other parties pursuant
to the Merger Agreement and the documents and certificates
delivered pursuant thereto.
"Going Private Event" shall mean the removal of
Ameristar Common Stock from listing or designation for
active trading on an established United States securities
market solely as the result of the prior completion of a
"Rule 13e-3 transaction" (as defined in Rule 13e-3 of the
SEC).
"Net Proceeds of the Post-Merger Offering Stock" shall
mean the proceeds of the Post-Merger Offering Stock sold in
the Offering, less the pro rata share (based on the amount
of Post-Merger Offering Stock sold in the Offering as a
portion of the total amount of Ameristar Common Stock sold
in the Offering) of the Offering Expenses. Ameristar shall
provide Xxxxxx with a reasonable opportunity to review
Ameristar's calculation of said costs and the back-up data
(e.g., invoices from professionals) used to calculate said
costs (it being understood that the foregoing shall not be
construed as requiring Ameristar to disclose information
which Ameristar's counsel concludes is subject to attorney-
client privilege or attorney work product disclosure
protection).
"Offering Expenses" shall mean the sum of (a) the
underwriter's discount and commission and (b) expenses,
attorneys' fees and accountants' fees, printing costs,
filing fees and all other costs (excluding underwriter's
discount and commission) to the extent that they reasonably
arise as a consequence of Ameristar's efforts to effect the
Offering; provided, however, that for purposes of this
Agreement, the amount set forth in clause (b) of this
definition of the term "Offering Expenses" shall not exceed
(i) if the gross price per share paid by the purchasers of
stock in the Offering is less than $8.00/share, then one-
half of one percent of the gross proceeds of the Offering,
or (ii) if the gross price per share paid by the purchasers
of stock in the Offering is greater than or equal to
$8.00/share, then the greater of (A) one-half of one percent
of the gross proceeds of the Offering and (B) $350,000. As
implemented by the provisions of Schedules 6 and 7 to the
Escrow Agreement, if the Offering does not occur on or
before the Settlement Date, then the Offering Expenses shall
be borne equally by the Gem Individuals and Ameristar.
"Offering" shall have the meaning set forth in Section
2.10 of the Merger Agreement (as amended by the Second
Amendment).
"Post-Merger Offering Stock" shall mean seven million
five-hundred thousand (7,500,000) shares of Ameristar Common
Stock. Notwithstanding the use of such defined term, the
Gem Individuals acknowledge and agree that nothing herein
shall be construed as conferring upon the Gem Individuals
any right, title or interest to the Post-Merger Offering
Stock (it being understood, however, that the Gem
Individuals shall have the right to receive the respective
payments contemplated by Section 2.10 of the Merger
Agreement).
"Second Amendment" shall mean the Second Amendment to
Merger Agreement dated as of September 27, 1996, by and
among Gem, Ameristar, ACLV and the Gem Individuals.
"Settlement Date" shall mean the earlier of (i) the
date that is eight (8) months after the Closing Date (but no
later than June 1, 1997), (ii) the closing of the sale of
Ameristar Common Stock sold in the Offering, or (iii) the
date (if any) upon which a Going Private Event occurs.
1.3 Revised Terms. The definitions of the following
terms set forth in Section 1.1 of the Merger Agreement are hereby
amended to read as follows:
"Ancillary Agreements" shall mean the Gem Individual
Notes Escrow Agreement and the Gem Individuals' Notes.
"Closing Date" shall mean October 1, 1996, or as soon
thereafter as Ameristar in good faith can obtain appropriate
amendments to its credit facility with Xxxxx Fargo in order to
obtain funds to pay off, on the Closing Date, the loan to Gem
from Bank of America.
"Merger Consideration" shall mean Gem Individuals'
right to payment pursuant to Sections 2.10 and 2.12 of the
Merger Agreement, as amended by the Second Amendment."
1.4 Re-defined Term. The defined term "Ineligible
Person" in Section 1.1 of the Merger Agreement is replaced so
that henceforth all references to Ineligible Person shall be
replaced with the term "Exiting Gem Shareholder." The substance
of the definition shall not change.
Article 2
Acknowledgment of Parties
The parties agree that each of the Gem Individuals
shall be treated as an "Exiting Gem Shareholder" for purposes of
Section 7.3 of the Merger Agreement.
Article 3
Amendments to Merger Provisions
3.1 Conversion of Shares. Section 2.8 and Section 2.9
of the Merger Agreement are hereby amended by deleting such
sections in their entirety and inserting the following in their
place:
"2.8 Conversion of Shares. In consideration for the
Merger, all of the shares of Gem Stock shall be exchanged
for the right of Xxxxxx and Magliarditi to receive payments
in accordance with Sections 2.10 and 2.12."
3.2 Offering. Section 2.10 of the Merger Agreement
entitled "Consideration Adjustment" is hereby amended by deleting
such section in its entirety and inserting the following in its
place:
"2.10 Post-Closing Offering. Ameristar shall use
commercially reasonable efforts to conclude an underwritten
public offering of Ameristar Common Stock (the "Offering")
on or before the date that is eight (8) months after the
Closing Date (but no later than June 1, 1997), subject to
the following terms and conditions:
(a) The Offering. Ameristar shall determine the
number of shares of Ameristar Common Stock that will be
included in the Offering in the exercise of its good faith
discretion after consultation with the Underwriter (as such
term is defined below); provided, however, that under no
circumstances shall Ameristar be entitled to sell through an
underwritten public offering more than five-hundred thousand
(500,000) shares of Additional Stock before the Settlement
Date unless Ameristar shall have previously sold or
contemporaneously sells all of the Post-Merger Offering
Stock in the Offering. Notwithstanding the foregoing,
nothing in this Agreement shall be deemed a limitation on
(1) Ameristar's right to manage, finance, sell, dispose of
or otherwise deal with its assets and its businesses, or (2)
Ameristar's right to effect additional offerings of
Ameristar Common Stock, after the Settlement Date, on such
terms as Ameristar may deem appropriate.
(b) The Underwriter. The lead managing underwriter of
the Offering shall be a nationally recognized underwriter
selected by Ameristar and Xxxxxx (the "Underwriter"). In
connection with the selection of the Underwriter (1)
Ameristar shall require the Underwriter and Ameristar's
accountants and attorneys materially involved in the
Offering to provide estimates of their anticipated fees and
expenses in connection with the Offering, and (2) Ameristar
shall provide Xxxxxx, prior to selection of the Underwriter,
with an opportunity to meet with the final potential
underwriter candidates so as to discuss in general terms
such candidates' proposed plans for the Offering. Xxxxxx
shall not unreasonably withhold or deny his approval of the
Underwriter.
(c) Additional Rights of The Gem Individuals with
Respect to the Offering. The Gem Individuals shall have the
following rights in connection with the Offering: (i) the
Gem Individuals shall have the right to meet with the
Underwriter, as reasonably requested by the Gem Individuals,
to discuss the status of the Offering; (ii) Ameristar shall
provide, in a reasonably prompt fashion following request,
the Gem Individuals with information reasonably requested by
them with respect to the marketing (including "road shows")
and the status of the Offering through the Settlement Date;
and (iii) the Gem Individuals shall be provided with
reasonable advance notice (which shall mean at least five
(5) days, when reasonably possible) of, and shall be
entitled to attend, informational meetings (i.e., "road
shows") with respect to the Offering. Except as otherwise
provided herein, Ameristar shall have no obligation to
provide the Gem Individuals with any information with
respect to Ameristar or the Offering.
(d) Limitations on Rights of Gem Individuals With
Respect to the Offering. Notwithstanding any provisions of
this Agreement to the contrary, neither of the Gem
Individuals
shall take, or cause or permit any of his Affiliates to take,
directly or indirectly, any action with respect to the
Offering, and neither Ameristar nor ACLV shall be required
to take or omit to take, any action with respect to the
Offering, if (i) in the reasonable determination of counsel
experienced in securities laws and regulations and working
on the Offering, such action would violate any applicable
law ("Applicable Law") (including without limitation the
Securities Act, the Exchange Act, the rules and regulations
of the SEC and any state securities law), or (ii) the
Underwriter determines that such action would not be
appropriate in connection with the Offering.
(e) The Gem Individuals' Obligations With Respect to
the Offering. Until the Settlement Date, each of the Gem
Individuals shall:
(i) At all times reasonably cooperate with
Ameristar in connection with the Offering and Ameristar SEC
filings and take all steps reasonably requested by Ameristar
in connection with the Offering or Ameristar SEC filings.
Such steps may include, without imitation, (A) the delivery
of agreements, certificates, instruments and documents
reasonably requested by the Underwriter, (B) the provision
of any information reasonably necessary to describe the Gem
Individuals' involvement with Ameristar, or the Gem
Individuals' interest in the net proceeds of the Post-Merger
Offering Stock, for any document to be filed by Ameristar
with the SEC or any state securities administrator,
including the Registration Statement and any public
statement to be made by Ameristar, and (C) the provision of
such information, representations, certificates or other
documents that may be reasonably requested by Ameristar's
independent public accountants in connection with any audit
or review of any Gem Financial Statements, including without
limitation, the Closing Date Balance Sheet. Each of the Gem
Individuals shall cause all information that he shall
provide to Ameristar neither to contain any untrue statement
of material fact nor to omit to state any material fact
necessary to make such information or any part thereof not
misleading.
(ii) Not disclose any information about Ameristar,
ACLV or any of Ameristar's other Subsidiaries or Affiliates
that is not generally known by the general public, without
the prior consent of Ameristar and approval of its outside
counsel, except on a "need to know" basis to the Underwriter
and counsel and experts retained by the Gem Individuals who
have agreed not to purchase, sell or otherwise deal in
Securities or other securities of Ameristar and who have
agreed to be bound by the confidentiality limitations
imposed by this Agreement.
(iii) Not (A) buy, sell or otherwise trade any
Securities or other securities of Ameristar or any options
to purchase or sell Ameristar Common Stock written by
persons other than Ameristar, (B) cause or permit any of his
Affiliates to buy, sell or otherwise trade, directly or
indirectly, any such securities, or (C) direct, cause or
influence, directly or indirectly, any other person to buy,
sell or otherwise trade such securities.
(iv) Without limiting clause (iii) above, not,
directly or indirectly, take any action himself, cause or
permit any action to be taken by any of his Affiliates, or
direct, cause or influence any third party to take any
action, that would (A) violate any of Sections 11, 12 or 17
of the Securities Act, Section 10(b) of the Exchange Act, or
Rules 10b-5 or 10b-6 of the SEC, whether or not in
connection with the Offering, (B) result in a breach of, or
failure of a representation made by Ameristar in, the
underwriting agreement for the Offering, or (C) result in a
breach of, or failure of a representation made by such Gem
Individual in, any agreement, certificate, instrument or
document executed by such Gem Individual for the benefit of
the Underwriter.
(f) The Gem Individuals' Right to Comment. Until the
Settlement Date, each of the Gem Individuals shall review
all documentation provided by Ameristar or the Underwriter
in connection with the Offering and periodically provide
comments and suggestions to Ameristar and the Underwriter
with respect to such documents regarding the marketing and
terms of the Offering (including the correction of any
information contained in any such document that such Gem
Individual knows or believes to be false or misleading).
Ameristar shall review and consider the Gem Individuals'
comments in good faith, but Ameristar shall have no
obligation to modify its proposed course of conduct or take
any action based on such comments or suggestions.
(g) Sale of All of the Post-Merger Offering Stock.
Except as provided in clause 2.10(i), if, on or before the
Settlement Date, the closing of the Offering occurs and
pursuant thereto Ameristar sells all of the Post-Merger
Offering Stock, then Ameristar and the Gem Individuals,
within three (3) Business Days after the Settlement Date,
shall take the following steps:
(i) First, said parties shall calculate the "Gem
Individuals' Shared Proceeds," which shall equal (A) the Net
Proceeds of the Post-Merger Offering Stock minus (B) the sum
of:
(1) the Gem Individuals' Share of the
Completion Differential ($4,000,000); plus
(2) one-half (1/2) of the excess (if any) of
the Net Proceeds of the Post-Merger Offering Stock over
a threshold amount determined by multiplying the number
of shares of Post-Merger Offering Stock sold in the
Offering times $8.00/share. Notwithstanding the
foregoing, the amount calculated pursuant to this
clause (2) shall not exceed One Million Two Hundred
Thousand Dollars ($1,200,000). Thus, if the Net
Proceeds of the Post-Merger Offering Stock are less
than the aforementioned threshold amount, then the
figure calculated in this clause (2) shall be zero
dollars ($0).
(ii) Second, said parties shall calculate (A) the
"Xxxxxx Payment," which shall equal the Gem Individuals'
Shared Proceeds multiplied times Rebeil's Gem Proportionate
Interest (7,270,408/7,500,000), and (B) the "Magliarditi
Payment," which shall equal the product of the Gem
Individuals' Shared Proceeds multiplied times Magliarditi's
Gem Proportionate Interest (229,592/7,500,000).
(iii) Third, Ameristar shall pay the Xxxxxx
Payment to Xxxxxx and the Magliarditi Payment to Magliarditi
within three (3) Business Days after the Settlement Date.
To the extent practicable, Ameristar shall endeavor to cause
said payments to be effected by direct disbursements from
the Underwriter.
(iv) Fourth, Xxxxxx, Xxxxxxxxxxx and Ameristar
shall each truthfully execute and deliver to Escrow Agent a
notice in the form of Schedule 1 attached to the Gem
Individuals' Notes Escrow Agreement, and Xxxxxx and
Magliarditi shall take such further actions as Ameristar may
request in order to cause the Xxxxxx Note, the Alternative
Xxxxxx Note, the Magliarditi Note and the Alternative
Magliarditi Note to be marked "CANCELLED" and delivered to
Ameristar (provided that in no event shall Xxxxxx or
Magliarditi be required to take any such actions earlier
than the date that the Xxxxxx Payment is delivered to Xxxxxx
and the Magliarditi Payment is delivered to Magliarditi).
(h) Sale of Less than All of the Post-Merger Offering
Stock. At the request of the Gem Individuals, if, on or
before the Settlement Date, Ameristar fails to sell all of
the Post-Merger Offering Stock in the Offering, then
Ameristar shall provide each of Xxxxxx and Xxxxxxxxxxx with
a promissory note for the respective value of such party's
Gem Proportionate Interest of the Post-Merger Offering
Stock, as determined by the Average 10-Day Closing Price as
of the Settlement Date, less the Gem Individuals' Share of
the Completion Differential. The parties have determined to
proceed on the basis of the general intent behind the
proposal of the Gem Individuals. Accordingly, in
furtherance of this general intent, the parties agree more
specifically as follows:
(i) At the Closing, Xxxxxx, Xxxxxxxxxxx and
Ameristar shall each execute and deliver to the Escrow Agent
the Note Escrow Agreement. In connection therewith,
Ameristar shall execute and deliver to the Escrow Agent, for
handling pursuant to the Escrow Agreement, the following:
(A) A promissory note in the form of
Schedule 1 attached to the Escrow Agreement (the "Xxxxxx
Note"), which shall continue to have blanks for the "date of
the note" and the "principal amount" (which shall be
delivered or cancelled only in accordance with the Escrow
Agreement);
(B) A promissory note in the form of
Schedule 2 attached to the Escrow Agreement (the
"Alternative Xxxxxx Note"), which shall be completed so that
the principal amount thereof equals the Average 10-Day
Closing Price as of the Closing Date multiplied by 7,270,408
shares but which shall continue to have a blank for the
"Settlement Date";
(C) A promissory note in the form of
Schedule 3 to the Escrow Agreement (the "Magliarditi Note"),
which shall continue to have blanks for the "date of the
note" and the "principal amount" (which shall be delivered
or cancelled only in accordance with the Escrow Agreement);
(D) A promissory note in the form of
Schedule 4 attached to the Escrow Agreement (the
"Alternative Magliarditi Note"), which shall be completed so
that the principal amount thereof equals the Average 10-Day
Closing Price as of the Closing Date multiplied by 229,592
shares but which shall continue to have a blank for the
"Settlement Date."
(ii) Except as provided in clause 2.10(i) below,
if Ameristar fails to sell all of the Post-Merger Offering
Stock in the Offering before the Settlement Date, then:
(A) within three (3) Business Days after the
Settlement Date, Ameristar shall calculate the amount of the
Offering Expenses and truthfully complete, execute and
deliver to Xxxxxx and Escrow Agent a notice in the form of
Schedule 6 attached to the Escrow Agreement. Following
Rebeil's approval of said notice (which approval shall not
be unreasonably withheld), Xxxxxx shall execute the same and
deliver a copy to the Escrow Agent, and Ameristar and Xxxxxx
thereafter shall take such further steps as may be
reasonably necessary in order to cause the Escrow Agent (1)
to complete the Xxxxxx Note in accordance with the terms of
said notice and to deliver the Xxxxxx Note to Xxxxxx and (2)
to xxxx the Alternative Xxxxxx Note as "CANCELLED" and to
return the Alternative Xxxxxx Note to Ameristar.
Notwithstanding the foregoing, if Ameristar fails to timely
deliver a completed notice in the form of Schedule 6 to
Xxxxxx and Escrow Agent on or before the end of the third
(3rd) Business Day following the Settlement Date, then
Xxxxxx shall have the right to truthfully complete said
notice and deliver the same to the Escrow Agent.
(B) within three (3) Business Days after the
Settlement Date, Ameristar shall each truthfully complete,
execute and deliver to Magliarditi and Escrow Agent a notice
in the form of Schedule 7 attached to the Note Escrow
Agreement. Following approval of said notice (which
approval shall not be withheld so long as the calculations
thereon are made on a basis consistent with the calculations
made in the notice approved by Xxxxxx pursuant to clause (A)
above), Magliarditi shall execute the same and deliver a
copy to the Escrow Agent, and Ameristar and Magliarditi
shall take such further steps as may be reasonably necessary
in order to cause the Escrow Agent (1) to complete the
Magliarditi Note in accordance with the terms of said notice
and to deliver the Magliarditi Note to Magliarditi and (2)
to xxxx the Alternative Magliarditi Note as "CANCELLED" and
to return the Alternative Magliarditi Note to Ameristar.
Notwithstanding the foregoing, if Ameristar fails to timely
deliver a completed notice in the form of Schedule 7 to
Magliarditi and Escrow Agent on or before the end of the
third (3rd) Business Day following the Settlement Date, then
Magliarditi shall have the right to truthfully complete said
notice and deliver the same to the Escrow Agent.
(i) Going Private Event. If a Going Private Event
occurs, then the Gem Individuals shall not be entitled to
the payments, notes or Ameristar Common Stock described in
Section 2.10(g) or 2.10(h) of the Merger Agreement. In lieu
thereof, Ameristar and the Gem Individuals shall each
execute and deliver to Escrow Agent, within three (3)
Business Days after the Settlement Date, a notice in the
form attached to the Escrow Agreement as Schedule 8. Upon
the determination, if any, by any person to commence a Rule
13e-3 transaction with respect to Ameristar Common Stock,
Ameristar shall not be obligated to proceed, and shall not
proceed, further with the Offering.
3.3 Stipend and Occupancy Rights. New Sections 2.12
and 2.13 are hereby added to the Merger Agreement as follows:
"2.12 Stipend. Ameristar shall pay Twenty-Five
Thousand Dollars ($25,000) to Xxxxxx on the Closing Date or
October 2, 1996, whichever occurs first. On the Closing
Date, Ameristar further shall deposit into the Escrow
$175,000 with an irrevocable instruction to the Escrow
Agent: (a) to disburse Twenty-Five Thousand Dollars
($25,000) to Xxxxxx on the first day of each calendar month
commencing November 1, 1996 through the Settlement Date; (b)
pending disbursement, to invest such funds in interest
bearing accounts (with the income charged to Ameristar's
taxpayer identification number); and (c) upon written notice
from Ameristar following the Settlement Date, to return any
undisbursed balance to Ameristar."
"2.13. Post-Closing Occupancy Through Settlement
Date. From the Closing Date until the day that is ten (10)
days after the Settlement Date, ACLV shall permit Xxxxxx to
use and occupy, rent free, the portion of ACLV's premises
located near the Reserve that is more particularly described
on Exhibit "B attached hereto (the "Premises"). Neither
Xxxxxx nor any employee of Xxxxxx nor any employee of any
company owned or controlled by Xxxxxx shall initiate contact
with or make any attempt to communicate with any employee,
invitee or licensee of Ameristar or ACLV unless Xxxxx X.
Xxxxxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxxx or another
employee of Ameristar or ACLV previously designated in
writing for such purposes shall have consented to such
communication. Xxxxxx shall not unreasonably request such
consent.
Xxxxxx shall use the Premises only for general office purposes
and shall not use the Premises for any unlawful purpose,
violate any government ordinance or create any nuisance.
Xxxxxx shall neither disrupt the activities of ACLV, other
tenants or employees, licenses or invitees of ACLV, nor
interfere with or disturb the operation of ACLV's business.
Xxxxxx shall not sublet or sub-license any portion of the
Premises. If Xxxxxx breaches any provision of this
Agreement, then ACLV shall be entitled to exercise all
remedies at law or in equity, including any provisional
remedy or remedies (i.e., unlawful detainer) that a landlord
has with respect to its tenant's breaches of lease."
Article 4
Amendments to Covenants and Conditions
4.1 Vote Required. The first two sentences of Section
5.10 of the Merger Agreement entitled "Vote Required" are hereby
deleted in their entirety.
4.2 Employee Matters. Section 6.9 of the Merger
Agreement is hereby amended by deleting such section in its
entirety and inserting the following in its place:
"6.9 Employee Matters. Ameristar and Magliarditi shall
enter into an employment agreement in a form approved by
Ameristar and Magliarditi containing the material terms set
forth in Exhibit AA to the Merger Agreement and such
additional terms as the parties may agree upon in the
exercise of good faith (it being understood that except as
specifically set forth in said Exhibit, Magliarditi shall
not be entitled to terms more favorable than those generally
available to the senior officers of Ameristar). Ameristar
and Magliarditi shall endeavor to execute and deliver said
employment agreement within ten (10) days after the
execution and delivery of the Second Amendment."
4.3 Board of Directors. Sections 6.10 and 11.5 of the
Merger Agreement entitled "Board of Directors" are hereby deleted
in their entirety.
4.4 Denial of License; Individuals. Subsection 7.3(e)
of the Merger Agreement is hereby deleted in its entirety.
4.5 Corporate Authorization.
(a) Section 8.9 of the Merger Agreement is hereby
amended by deleting such section in its entirety and inserting
the following in its place:
"8.9 Corporate Authorization. The Board of Directors
of each of Ameristar and ACLV shall have approved all
necessary resolutions for the execution and delivery of this
Agreement and the Ancillary Agreements, the consummation of
the transactions contemplated hereby and thereby and the
performance of the obligations of Ameristar and ACLV
hereunder and thereunder."
(b) Section 9.14 of the Merger Agreement is hereby
amended by deleting such section in its entirety and inserting
the following in its place:
"9.14 Corporate Authorization. The Board of
Directors of each of Ameristar and ACLV shall have approved
all necessary resolutions for the execution and delivery of
this Agreement and the Ancillary Agreements, the
consummation of the transactions contemplated hereby and
thereby and the performance of the obligations of Ameristar
and ACLV hereunder and thereunder."
4.6 Officers. Section 11.6 of the Merger Agreement is
hereby amended by deleting such section in its entirety and
inserting the following in its place:
"11.6 Officers. The present officers of Ameristar
shall continue in office and, upon Closing, Ameristar shall
cause Xxxxxxx X. Xxxxxxxxxxx to be elected to the offices of
Senior Vice-President and Co-General Counsel."
4.7 Deletion of Tax-Free Objective. Subsection
11.10(c) of the Merger Agreement is hereby deleted in its
entirety.
Article 5
"Clean-Up" Amendments
5.1 Amendments to Exhibits. Exhibits M, N, O and DD
to the Merger Agreement are hereby deleted. Exhibit B to the
Merger Agreement is amended by deleting such exhibit in its
entirety and inserting in its place Exhibit B attached hereto.
5.2 Amendments to Deliveries. Section 3.2(c)(v) and
Section 3.2(d) of the Agreement are hereby amended by deleting
such Sections in their entirety.
Article 6
Miscellaneous Provisions
6.1 No Other Amendments. Except as specifically
provided in this Amendment (or in the Escrow Agreement, the terms
of which are incorporated herein by reference), no amendments,
revisions or changes are made to the Merger Agreement. All other
terms and conditions of the Merger Agreement remain in full force
and effect and apply fully to this Amendment.
6.2 Choice of Law. This Amendment shall be construed,
interpreted and the rights of the parties determined in
accordance with the laws of the State of Nevada (without
reference to choice of law provisions), except with respect to
matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this
Amendment, and as to those matters the law of the jurisdiction
under which the respective entity derives its powers shall
govern.
6.3 Multiple Counterparts. This Amendment may be
executed in one or more counterparts, and by different parties
hereto in separate counterparts, each of which when executed
shall be deemed to be an original, including counterparts
transmitted by facsimile, but all of which taken together shall
constitute one and the same agreement.
6.4 Invalidity. In the event that any one or more of
the provisions contained in this Amendment or in any other
instrument referred to herein, shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, then to the
maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Amendment or any other such instrument.
6.5 Titles; Gender. The titles, captions or headings
of the Articles, Sections and Subsections herein, and the use of
a particular gender, are for convenience of reference only and
are not intended to be a part of or to affect or restrict the
meaning or interpretation of this Agreement.
6.6 Effect of Amendment. On and after the date
hereof, each reference in the Merger Agreement or the Ancillary
Agreements to the "Merger Agreement" or the "Agreement" shall
mean the Merger Agreement as amended hereby. Except as
specifically amended above, the Merger Agreement shall remain in
full force and effect and is hereby ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any party hereto, nor constitute a
waiver of any provision of the Merger Agreement.
6.7 Legal and Tax Advice. Each party hereto has had
an opportunity to discuss this Amendment with counsel of their
respective choosing, and to have the legal consequences of this
Amendment and the transactions contemplated hereby explained by
such counsel. Each party hereto also has had an opportunity to
seek and obtain the advice of a competent tax professional with
respect to the tax consequences of this Amendment and the
transactions contemplated hereby. No party is relying upon any
other party or any of their respective stockholders, directors,
officers, agents or Representatives for purposes of interpreting
the provisions of this Amendment or assessing the consequences
hereof.
6.8 Arbitration. Notwithstanding any provisions of
the Merger Agreement to the contrary, each party shall have all
rights and remedies afforded by applicable law in the event of a
breach by another party of a covenant, representation or warranty
set forth in the Merger Agreement, as amended hereby. The
parties further confirm that disputes under the Merger Agreement,
as amended hereby, shall be subject to arbitration in accordance
with Section 12.13 of the Merger Agreement. The parties further
expressly agree that Ameristar, ACLV and the Gem Individuals
shall have the right to specifically enforce the obligations of
the other parties (a) to close the Merger in accordance with the
terms of the Merger Agreement and (b) with respect to the
covenants set forth in Sections 2.10 and 2.12 of the Merger
Agreement, as amended hereby.
6.9 Alternative Notes. The Alternative Xxxxxx Note
and the Alternative Magliarditi Note are being executed by
Ameristar and delivered to Escrow Agent in order to provide
further comfort to Xxxxxx and Xxxxxxxxxxx that Ameristar will
perform its obligations under Sections 2.10(h) and 2.10(i) of the
Merger Agreement, as amended hereby. Notwithstanding the
foregoing: (a) said notes shall be handled solely in accordance
with the terms of this Agreement and the Escrow Agreement; (b) in
no event shall Ameristar at any time have obligations under both
the Xxxxxx Note and the Alternative Xxxxxx Note; and (c) in no
event shall Ameristar at any time have obligations under both the
Magliarditi Note and the Alternative Magliarditi Note.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of
the day and year first above written.
AMERISTAR:
AMERISTAR CASINOS, INC.,
a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
President
On this 2nd day of October, 1996, Xxxxx X. Xxxxxxx directed
Xxxxxx X. Xxxxxxxxxx, in his presence as sell as our own, to sign
the foregoing document as "Xxxxx X. Xxxxxxx." Upon viewing the
signature as signed by Xxxxxx X. Xxxxxxxxxx, and in our presence,
Xxxxx X. Xxxxxxx declared to us that he adopted it as his own
signature.
/s/ Xxxxx Xxxxxxx
Witness
/s/ Xxxxxxxxx X. Xxxxxx
Witness
State of Nevada )
) ss.
County of Xxxxx )
I, Xxxxxxxxx Xxxxxxxxxx, Notary Public in and for said
county and state, do hereby certify that Xxxxx X. Xxxxxxx
personally appeared before me and is known or identified to me to
be the President of Ameristar Casinos, Inc., the corporation that
executed the within instrument or the person who executed the
instrument on behalf of said corporation. Xxxxx X. Xxxxxxx, who
being unable due to physical incapacity to sign his name or offer
his xxxx, did direct Xxxxxx X. Xxxxxxxxxx, in his presence, as
well as my own, to sign his name to the foregoing document.
Xxxxx X. Xxxxxxx, after viewing his name as signed by Xxxxxx X.
Xxxxxxxxxx, thereupon adopted it as his own by acknowledging to
me his intention to so adopt as if he had personally executed the
same in behalf of said corporation, and further acknowledged to
me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 2nd day of October, 1996.
/s/Xxxxxxxxx Xxxxxxxxxx
Notary Public
My Commission Expires on:
6/24/99
ACLV:
AMERISTAR CASINO LAS VEGAS,
INC., a Nevada
corporation
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
President
On this 2nd day of October, 1996, Xxxxx X. Xxxxxxx directed
Xxxxxx X. Xxxxxxxxxx, in his presence as sell as our own, to sign
the foregoing document as "Xxxxx X. Xxxxxxx." Upon viewing the
signature as signed by Xxxxxx X. Xxxxxxxxxx, and in our presence,
Xxxxx X. Xxxxxxx declared to us that he adopted it as his own
signature.
/s/ Xxxxx Xxxxxxx
Witness
/s/ Xxxxxxxxx X. Xxxxxx
Witness
State of Nevada )
) ss.
County of Xxxxx )
I, Xxxxxxxxx Xxxxxxxxxx, Notary Public in and for said
county and state, do hereby certify that Xxxxx X. Xxxxxxx
personally appeared before me and is known or identified to me to
be the President of Ameristar Casinos, Inc., the corporation that
executed the within instrument or the person who executed the
instrument on behalf of said corporation. Xxxxx X. Xxxxxxx, who
being unable due to physical incapacity to sign his name or offer
his xxxx, did direct Xxxxxx X. Xxxxxxxxxx, in his presence, as
well as my own, to sign his name to the foregoing document.
Xxxxx X. Xxxxxxx, after viewing his name as signed by Xxxxxx X.
Xxxxxxxxxx, thereupon adopted it as his own by acknowledging to
me his intention to so adopt as if he had personally executed the
same in behalf of said corporation, and further acknowledged to
me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 2nd day of October, 1996.
Xxxxxxxxx Xxxxxxxxxx
Notary Public
My Commission Expires on:
6/24/99
GEM:
GEM GAMING, INC.,
a Nevada corporation
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: Chairman
By: /s/Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Its: Vice President/General Counsel
XXXXXX:
XXXXXX X. XXXXXX,
an individual
/s/Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, in his
capacity as Trustee of the
Karizma Trust created under
that certain Trust Agreement dated July 2,
1991, as amended
/s/Xxxxxx X. Xxxxxx
MAGLIARDITI:
XXXXXXX X. XXXXXXXXXXX,
an individual
/s/ Xxxxxxx X. Xxxxxxxxxxx
Consent of Spouse of Xxxxxx X. Xxxxxx
The undersigned hereby confirms (i) that she has read,
approved of and agreed with the terms of this Amendment and all
transactions contemplated thereby, (ii) that as the spouse of one
of the signatories thereto, her property (including her interests
in any community property) may be held liable for the obligations
of her spouse under this Amendment and all transactions and other
agreements contemplated hereby, (iii) that she will be bound by
this Amendment and all other agreements contemplated hereby as if
she were a party thereto, and that any agreements,
acknowledgments, representations or warranties made by her spouse
under this Amendment or any other agreements contemplated hereby
shall apply equally to the undersigned as if made by the
undersigned, (iv) that she approves all actions taken to date by
her spouse in connection with this Amendment and all other
agreements contemplated hereby, and that she has authorized and
empowered her spouse to take any and all further actions which he
deems necessary or appropriate in order to effect the
transactions contemplated thereby, and (v) that Ameristar may
rely upon the confirmations set forth in this Consent of Spouse
in entering into and proceeding with this Amendment.
Date: October 3, 1996 /s/Jilly Xxxxxx
Consent of Spouse of Xxxxxxx X. Xxxxxxxxxxx
The undersigned hereby confirms (i) that she has read,
approved of and agreed with the terms of this Amendment and all
transactions contemplated hereby, (ii) that as the spouse of one
of the signatories thereto, her property (including her interests
in any community property) may be held liable for the obligations
of her spouse under this Amendment and all transactions and other
agreements contemplated hereby, (iii) that she will be bound by
this Amendment and all other agreements contemplated hereby as if
she were a party thereto, and that any agreements,
acknowledgments, representations or warranties made by her spouse
under this Amendment or any other agreements contemplated hereby
shall apply equally to the undersigned as if made by the
undersigned, (iv) that she approves all actions taken to date by
her spouse in connection with this Amendment and all transactions
and other agreements contemplated thereby, and that she has
authorized and empowered her spouse to take any and all further
actions which he deems necessary or appropriate in order to
effect the transactions contemplated thereby, and (v) that
Ameristar may rely upon the confirmations set forth in this
Consent of Spouse in entering into and proceeding with this
Amendment.
Date: October 1, 1996 /s/Xxxxxxxx X. Xxxxxxxxxxx
Exhibit A
Form of Gem's Project Status Certificate
Exhibit B
Space Available to Xxxxxx
EXHIBITS TO SECOND AMENDMENT TO MERGER AGREEMENT
EXHIBIT A Form of Gem's Project Status Certificate
EXHIBIT B SPACE AVAILABLE TO XXXXXX
See attached.
