AMENDMENT NO. 1 TO MERGER AGREEMENT
This AMENDMENT NO. 1 TO MERGER AGREEMENT (the "AMENDMENT") is dated as
of March 19, 1999, and it serves as an amendment to the Agreement and Plan of
Merger ("MERGER AGREEMENT"), dated as of March 9, 1999, among ANCHOR GAMING,
a Nevada corporation ("PARENT"), OLIVE AP ACQUISITION CORPORATION, a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("MERGER SUB"),
and POWERHOUSE TECHNOLOGIES, INC., a Delaware corporation (the "COMPANY").
Capitalized terms not defined herein shall have the meaning given to them in
the Merger Agreement.
WHEREAS, the parties hereto wish to amend certain provisions of the
Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements set forth in this Amendment and
the Merger Agreement, the parties hereto agree as follows:
1. "Olive AP Acquisition Corporation" is deleted wherever it appears in
the Agreement and replaced with "Anchor Powerhouse Acquisition Corporation,"
which is the new name of the Merger Sub. In SECTION 6.3(c) of the Merger
Agreement, the reference made to the "Nevada Secretary of State" with respect
to delivery of evidence of the existence and good standing of the Merger Sub
is deleted and replaced with "Delaware Secretary of State."
2. SECTION 5.2 of the Merger Agreement is deleted in its entirety and
replaced with the following:
SECTION 5.2 PROXY STATEMENT. Promptly after the execution of this
Agreement, the Company and Parent will cooperate with each other and use
all reasonable efforts to prepare, and the Company will file with the
SEC, as soon as is reasonably practicable, a proxy statement, together
with a form of proxy, with respect to the Special Meeting (as defined in
SECTION 5.3). For the purposes of this Agreement, the term "Proxy
Statement" means such proxy filed in final form with the SEC at the time
it initially is mailed to the stockholders of the Company and all
amendments or supplements thereto, if any, similarly filed and mailed.
The Company will use all reasonable efforts to have the Proxy Statement
cleared by the SEC as promptly as practicable after filing and, as
promptly as practicable after the Proxy Statement has been so cleared,
will mail the Proxy Statement to the stockholders of the Company as of
the record date for the Special Meeting. The Company represents that
none of the information provided or to be provided by it, and Parent and
Merger Sub represent that none of the information provided or to be
provided by them, for use in the Proxy Statement will, on the date the
Proxy Statement is first mailed to the stockholders of the Company and
on the date of the Special Meeting, be false or misleading with respect
to any material fact or omit to state any material fact required to be
stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they are made, not misleading, and Parent, the Company, and
Merger Sub each agrees to correct any information provided by it for use
in the Proxy Statement that has become false or misleading in any
material respect and file such amendments and supplements as are
necessary. The Company agrees that the Proxy Statement will comply as
to form in all material respects with all applicable requirements of
federal securities laws and applicable state laws.
3. SECTION 5.1 of the Merger Agreement is amended by adding a new
Section 5.1(c):
(c) Notwithstanding anything to the contrary contained in SECTION
5.1(b), it is understood and agreed that to become effective, the
restrictions contained in SECTION 5.1(b)(i) through (viii) and (xiv) may
require the approval of various gaming or other regulatory agencies and will
require the approval of the Nevada Gaming Commission as to those subsidiaries
of the Company that are Nevada gaming licensees and that such restrictions
will be effective only to the extent permitted pursuant to the rules and
regulations of such gaming or other regulatory authorities, it being the
intent of the parties that such restrictions be effective to the maximum
extent allowable by applicable law.
4. SECTION 1.7 of the Merger Agreement is deleted in its entirety and
replaced with the following:
SECTION 1.7 OFFICERS. The following officers of the Company will
be the initial officers of the Surviving Corporation and will hold office
until the earlier of their death, resignation or removal:
Xxxxxxx X. Xxxxxxx President and Secretary
5. References to "SECTION 6.2(g)" made in SECTION 6.2(h) of the Merger
Agreement are deleted and replaced with "SECTION 6.2(h)."
6. Except as set forth in this Amendment, the Agreement is not modified
in any respect.
7. COUNTERPARTS. This Amendment may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
ANCHOR GAMING
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Office: Chairman of the Board
ANCHOR POWERHOUSE ACQUISITION CORPORATION
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Office: President and Chief Executive Officer
POWERHOUSE TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Office: President and Chief Executive Officer
