FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT"), dated
as of September 4, 1998, by and among XXXXXX'X ENTERTAINMENT, INC., a Delaware
corporation ("XXXXXX'X"), HEI ACQUISITION CORP. III, a Nevada corporation and a
direct wholly-owned subsidiary of Xxxxxx'x ("MERGER SUB"), and RIO HOTEL &
CASINO, INC., a Nevada corporation ("RIO").
WHEREAS, the parties hereto previously entered into that certain Agreement
and Plan of Merger, dated as of August 9, 1998 (the "MERGER AGREEMENT"),
pursuant to which Merger Sub will, upon the terms and subject to the conditions
set forth in the Merger Agreement, merge with and into Rio (the "MERGER"), with
Rio as the surviving corporation;
WHEREAS, the parties intended at the time of entering into the Merger
Agreement for the Merger to be accounted for as a pooling of interests, and that
Xxxxxx'x would obtain a letter from its public accountants as to the
appropriateness of such accounting treatment, the receipt of which letter was to
be a condition to Xxxxxx'x obligation to effect the Merger (the "POOLING
CONDITION");
WHEREAS, the parties intend that the purpose of this Amendment is to
eliminate the Pooling Condition and any other provisions in the Merger Agreement
that contemplate or require that the Merger be accounted for as a pooling of
interests;
WHEREAS, each of the Boards of Directors of Xxxxxx'x and Rio has determined
that eliminating the Pooling Condition and making the other changes contemplated
by this Amendment are in the best interests of Xxxxxx'x or Rio, as the case may
be, and their respective stockholders; and
WHEREAS, the Boards of Directors of Xxxxxx'x, Merger Sub and Rio have each
approved this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties agree as follows:
1. Terms used and not otherwise defined herein shall have the meanings
given to such terms in the Merger Agreement.
2. The last recital on page 1 of the Merger Agreement is deleted in its
entirety.
3. The fifth sentence of Section 2.3 of the Merger Agreement (beginning
with the words "The conversion shall be effected in a manner . . .") is deleted
in its entirety.
4. Section 3.16 of the Merger Agreement is amended in its entirety to
read as follows:
SECTION 3.16. TAX MATTERS. To the best knowledge of
Rio, after consulting with its tax advisors, except as set
forth on Schedule 3.16 of the Rio Disclosure Schedule,
neither Rio nor any of its Affiliates (as defined in Section
5.12) has taken or agreed to take any action which would
prevent the Merger from qualifying as a reorganization
described in Section 368(a) of the Code.
5. Section 4.15 of the Merger Agreement is amended in its entirety to
read as follows:
SECTION 4.15. TAX MATTERS. To the best knowledge of
Xxxxxx'x, after consulting with its tax advisors, except as
set forth on Schedule 4.15 of the Xxxxxx'x Disclosure
Schedule, neither Xxxxxx'x nor any of its Affiliates has
taken or agreed to take any action which would prevent the
Merger from qualifying as a reorganization described in
Section 368(a) of the Code.
6. Section 5.13 of the Merger Agreement is amended in its entirety to
read as follows:
SECTION 5.13. INTENTIONALLY OMITTED.
7. Clause (f) of Section 6.3 of the Merger Agreement is deleted in its
entirety.
8. Clause (d) of Section 7.3 of the Merger Agreement is amended in its
entirety to read as follows:
(d) Intentionally omitted.
9. Paragraph 2 of the letter attached as Exhibit B to the Merger
Agreement is amended in its entirety to read as follows:
2. INTENTIONALLY OMITTED.
10. In the event that there is a conflict between any of the provisions of
this Amendment and any of the provisions of the Merger Agreement, the provisions
of this Amendment shall control.
11. Except as expressly amended or modified herein, all the terms and
conditions of the Merger Agreement shall remain unchanged and in full force and
effect.
12. This Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when two or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
13. This Amendment shall be governed by and construed in accordance with
the laws of the State of Nevada without regard to any applicable conflicts of
law.
(Signature Page on Next Page)
IN WITNESS WHEREOF, Xxxxxx'x, Merger Sub and Rio have caused this Amendment
to be signed by their respective duly authorized officers as of the date first
written above.
XXXXXX'X ENTERTAINMENT, INC.
/s/ Xxxxx X. Xxxx
_______________________________________
By: Xxxxx X. Xxxx
Its: Executive Vice President & Chief
Financial Officer
HEI ACQUISITION CORP. III
/s/ Xxxxx X. Xxxx
_______________________________________
By: Xxxxx X. Xxxx
Its: Executive Vice President
and Treasurer
RIO HOTEL & CASINO, INC.
/s/ Xxxxx X. Xxxxxxx, Xx.
_______________________________________
By: Xxxxx X. Xxxxxxx, Xx.
Its: President
