Exhibit 4.1
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of July 14, 2004, to the
Rights Agreement (the "Agreement"), dated as of December 29, 1998, between
Caesars Entertainment, Inc., a Delaware corporation (the "Company"), and Xxxxx
Fargo Bank, N.A. (as successor to ChaseMellon Shareholder Services, L.L.C.), as
rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have previously entered into
the Agreement; and
WHEREAS, Section 26 of the Agreement provides that so long as the
Rights (as defined in the Agreement) are redeemable, the Company may, in its
sole and absolute discretion, supplement or amend any provision of the
Agreement; and
WHEREAS, the Company, Xxxxxx'x Entertainment, Inc., a Delaware
corporation, ("Parent") and Xxxxxx'x Operating Company, Inc., a Delaware
corporation ("Merger Sub"), have entered into an Agreement and Plan of Merger,
dated July 14, 2004, (the "Merger Agreement"), pursuant to which Parent will
acquire the Company; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its stockholders and consistent with the objectives
of the Board of Directors in adopting the Agreement to amend the Agreement to
except the Merger Agreement and the transactions contemplated thereby from the
Agreement; and
WHEREAS, the Company has delivered to the Rights Agent a certificate,
dated as of the date hereof, of an appropriate officer of the Company certifying
that this Amendment is in compliance with the terms of Section 26 of the
Agreement and instructing the Rights Agent to execute and deliver this
Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties agree as follows:
ARTICLE I
AMENDMENT
Section 1.1. Section 1.1 of the Agreement shall be amended by inserting
the following provisions at the end of Section 1.1:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, none of Xxxxxx'x Entertainment,
Inc. ("Parent"), its Subsidiaries, Affiliates or Associates,
including Xxxxxx'x Operating Company, Inc. (the "Merger Sub"),
is, nor shall any of them be deemed to be, an Acquiring Person
by virtue of (i) their acquisition, or their right to acquire,
beneficial ownership of Common Stock of the Company as a
result of their execution of the Agreement and Plan of Merger,
dated July 14, 2004 by and among Parent, Merger Sub and the
Company (the "Merger Agreement"), (ii) the consummation of the
Merger (as defined in the Merger Agreement), or (iii) any
other transaction contemplated by the Merger Agreement, it
being the purpose of the Company in adopting this amendment to
the Agreement that neither the execution of the Merger
Agreement by any of the parties nor the consummation of the
transactions contemplated thereby shall in any respect give
rise to any provision of the Agreement becoming effective."
Section 1.2. Section 1.10 of the Agreement shall be amended by
inserting the following at the end of Section 1.10:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Shares Acquisition Date shall
not occur by reason of the approval, delivery or execution of
the Merger Agreement, the acceptance of payment and purchase
of shares of Company's Common Shares, the consummation of the
Merger, or any other transaction contemplated by the Merger
Agreement."
Section 1.3. Section 1.12 of the Agreement shall be amended by
inserting the following at the end of Section 1.12:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Trigger Event shall not occur by
reason of the approval, delivery or execution of the Merger
Agreement, the acceptance of payment and purchase of shares of
Company's Common Shares, the consummation of the Merger, or
any other transaction contemplated by the Merger Agreement."
Section 1.4. Section 3.1 of the Agreement shall be amended by inserting
the following at the end of Section 3.1:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Distribution Date shall not
occur by reason of the approval, delivery or execution of the
Merger Agreement, the acceptance of payment and purchase of
shares of Company's Common Shares, the consummation of the
Merger, or any other transaction contemplated by the Merger
Agreement."
Section 1.5. Section 20.3 of the Agreement shall be amended by
inserting the following after the word "misconduct" at the end of Section 20.3:
", as finally determined by a court of competent jurisdiction.
Anything to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, punitive, indirect,
consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even
if the Rights Agent has been advised of the likelihood of such
loss or damage."
Section 1.6. Section 13.1 of this Agreement shall be amended by
inserting the following at the end of Section 13.1:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Shares Acquisition Date shall
not occur by reason of the execution, approval or delivery of
the Merger Agreement, the acceptance of payment and purchase
of shares of the Company's Common Shares, the consummation of
the Merger, or any other transaction contemplated by the
Merger Agreement."
Section 1.7. Section 11.1.2 of this Agreement shall be amended by
inserting the following at the end of Section 11.1.2:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, no Trigger Event shall be deemed
to have occurred by reason of the execution, approval or
delivery of the Merger Agreement, the acceptance of payment
and purchase of shares of the Company's Common Shares, the
consummation of the Merger, or any other transaction
contemplated by the Merger Agreement."
Section 1.8. A new Section 35 is hereby added reading in its entirety
as follows:
"This Agreement and the Rights established hereby will
terminate in all respects immediately prior to the Effective
Time (as defined in the Merger Agreement). The Company hereby
agrees to promptly notify the Rights Agent, in writing, upon
the occurrence of the Effective Time (as defined in the Merger
Agreement), which notice shall specify (i) that the Effective
Time (as defined in the Merger Agreement) has occurred, and
(ii) the date upon which this Agreement and the Rights
established hereby were terminated."
Section 1.9. A new Section 36 is hereby added reading in its entirety
as follows:
"The Rights Agent shall not be subject to, nor be required to
comply with, or determine if any event has occurred under
(including, but not limited to, the occurrence of the Merger
or the Effective Time), or any Person has complied with, the
Merger Agreement or any agreements and documents related to or
referred to in the Merger Agreement or any other agreement
between or among the parties thereto, even though reference
thereto may be made in this Agreement, or to comply with any
notice, instruction, direction, request or other
communication, paper or document other than as expressly set
forth in this Agreement."
ARTICLE II
MISCELLANEOUS
Section 2.1. Termination of Merger Agreement. If for any reason the
Merger Agreement is terminated and the Merger is abandoned, then this Amendment
shall be of no further force and effect and the Agreement shall remain exactly
the same as it existed immediately prior to execution of this Amendment.
Section 2.2. Definitions. Terms not otherwise defined in this Amendment
shall have the meaning ascribed to such terms as in the Agreement. The term
"Agreement" as used in the Agreement shall be deemed to refer to the Agreement
as amended hereby, and all references to the Agreement shall be deemed to
include this Amendment.
Section 2.3. Governing Law. This Amendment shall be deemed to be
entered into under the laws of the State of Delaware and for all purposes shall
be governed by the construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
Section 2.4. Counterparts. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 2.5. Effectiveness. This Amendment shall be effective as of the
date first written above, and except as expressly set forth herein, the
Agreement shall remain in full force and effect and otherwise shall be
unaffected hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, a duly authorized representative of each party has
executed this Amendment, as of the date first written above.
CAESARS ENTERTAINMENT, INC.,
By: /s/ Xxxxxxx X. Xxxx
______________________________
Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
Attest: /s/ Xxxxxxx XxXxxx
____________________
Name: Xxxxxxx XxXxxx
Title: Secretary
XXXXX FARGO BANK, N.A.,
As Rights Agent
By: /s/ Xxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
Attest: /s/ Xxxxx Xxxxxx
____________________
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
