Exhibit 4.3
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2, dated as of April 20, 2006 (this "Amendment No.
2"), to the Rights Agreement, dated as of December 14, 1999 (the "Rights
Agreement"), between Aztar Corporation, a Delaware corporation (the "Company"),
and Mellon Investor Services LLC, a New Jersey limited liability company (as
successor to ChaseMellon Shareholder Services, L.L.C.), as rights agent (the
"Rights Agent").
W I T N E S S E T H:
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WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 27 thereof; and
WHEREAS, the Company, Pinnacle Entertainment Inc., a Delaware
corporation ("Pinnacle"), and PNK Development 1, Inc., a Delaware corporation
and a wholly-owned subsidiary of Pinnacle ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated as of March 13, 2006 (the "Merger
Agreement"), pursuant to which Merger Sub will merge with and into the Company,
with the Company surviving that merger; and
WHEREAS, on April 18, 2006, the Company, Pinnacle and Merger
Sub entered into Amendment No. 1 to the Merger Agreement (the "Amendment"); and
WHEREAS, at a special meeting of the Board of Directors of the Company
(the "Board") held on April 18, 2006, the Board approved an amendment of the
Rights Agreement in the manner set forth herein to give effect to the Amendment;
and
NOW, THEREFORE, in consideration of the foregoing and mutual agreements
set forth in the Rights Agreement and this Amendment No. 2, the parties agree as
follows:
1. Amendment to Definition of "Acquiring Person." Section 1(a) of the
Rights Agreement, as amended, is amended to replace the last sentence
with the following sentence: "Notwithstanding the foregoing or any
provision to the contrary in this Agreement, none of Pinnacle
Entertainment, Inc., a Delaware corporation, ("Pinnacle"), its
Subsidiaries, Affiliates or Associates, including PNK Development 1,
Inc., a Delaware corporation and a wholly owned subsidiary of Pinnacle
("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 March 13,
2006 (and as may be amended from time to time), by and among Pinnacle,
the Company and Merger Sub (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 (after giving effect to any amendment to the Merger
Agreement) nor the consummation of the transactions contemplated
thereby shall in any respect give rise to any provision of the
Agreement becoming effective."
2. Definitions. Terms not otherwise defined in this Amendment No. 2 shall
have the meaning ascribed to such terms as in the Rights Agreement. The
term "Agreement" or "Rights Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby, and
all references to the Agreement or Rights Agreement shall be deemed to
include this Amendment No. 2.
3. Governing Law. This Amendment No. 2 shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of
conflict of laws; provided, however, that all provisions of this
Amendment No. 2 regarding the rights, duties and obligations of the
Rights Agent shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in
and to be performed in that State.
4. Counterparts. This Amendment No. 2 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 party and delivered to the other parties.
5. Descriptive Headings. Descriptive headings of the several Sections of
this Amendment No. 2 are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
6. Effectiveness. This Amendment No. 2 shall be effective as of the date
first written above, and except as expressly set forth herein, the
Rights Agreement shall remain in full force and effect and otherwise
shall be unaffected hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be duly executed as of the day and year first above written.
AZTAR CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer,
Vice President and Treasurer
MELLON INVESTOR SERVICES, LLC,
as Rights Agent
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Client Relationship Executive
