UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 1, 2013
Ameristar Casinos, Inc.
(Exact name of registrant as specified in its charter)
Commission File No. 000-22494
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Nevada |
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88-0304799 |
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(State or other jurisdiction of |
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(I.R.S. Employer Identification No.) |
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3773 Howard Hughes Parkway, Suite 490S, Las Vegas, NV 89169 |
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(Address of principal executive offices) (Zip Code) |
(702) 567-7000
(Registrant’s telephone number, including area code)
Former name or former address, if changed since last report: N/A
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
First Amendment to Agreement and Plan of Merger
On December 20, 2012, Ameristar Casinos, Inc. (“Ameristar”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Pinnacle Entertainment, Inc. (“Pinnacle”), PNK Holdings, Inc., a direct wholly-owned subsidiary of Pinnacle (“HoldCo”), and PNK Development 32, Inc., an indirect wholly-owned subsidiary of Pinnacle (“Merger Sub,” and together with Ameristar, Pinnacle and HoldCo, the “Parties”), pursuant to which Merger Sub would be merged with and into Ameristar, with Ameristar surviving as a direct wholly-owned subsidiary of HoldCo and an indirect wholly-owned subsidiary of Pinnacle. The Merger Agreement further provides that Pinnacle is entitled, under certain circumstances, to elect to implement an alternative merger structure pursuant to which HoldCo would be merged with and into Ameristar, with Ameristar as the surviving corporation (the “Alternative Merger”), and immediately thereafter, Ameristar would be merged with and into Pinnacle, with Pinnacle as the surviving corporation.
On February 1, 2013, the Parties entered into a First Amendment to the Merger Agreement (the “Amendment”) to more specifically address the procedures for and the effects of the Alternative Merger. Other than the amendments to the Merger Agreement contained in the Amendment, the Merger Agreement remains unchanged.
The foregoing description of the Merger Agreement and the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement (filed as Exhibit 2.1 to Ameristar’s Current Report on Form 8-K filed on December 21, 2012) and the Amendment (which is filed as Exhibit 2.1 hereto), respectively, and each of the Merger Agreement and the Amendment are incorporated into this Current Report on Form 8-K by this reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The exhibit listed below is incorporated herein in its entirety.
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Exhibit |
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Description |
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2.l |
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First Amendment to Agreement and Plan of Merger, dated as of February 1, 2013, by and among Pinnacle Entertainment, Inc., PNK Holdings, Inc., PNK Development 32, Inc. and Ameristar Casinos, Inc. |
Additional Information and Where to Find It
In connection with the proposed merger, Ameristar plans to file a proxy statement with the SEC and mail the proxy statement to its stockholders. INVESTORS AND STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT AND OTHER PROXY MATERIALS WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT PINNACLE, AMERISTAR, THE PROPOSED MERGER AND RELATED MATTERS. The proxy statement, as well as other filings containing information about Pinnacle and Ameristar, will be available, free of charge, from the SEC’s website (www.sec.gov). Pinnacle’s SEC filings in connection with the transaction also may be obtained, free of charge, from Pinnacle’s website (www.pnkinc.com) under the tab “Investor Relations” and then under the heading “SEC Filings,” or by directing a request to Pinnacle, 8918 Spanish Ridge Avenue, Las Vegas, Nevada 89148, Attention: Investor Relations, or (702) 541-7777. Ameristar’s SEC filings in connection with the transaction also may be obtained, free of charge, from Ameristar’s website (www.ameristar.com) under the tab “About Us,” “Investor Relations” and then under the heading “Ameristar SEC Reports & Filings,” or by directing a request to Ameristar, 3773 Howard Hughes Parkway, Suite 490 South, Las Vegas, Nevada 89169, Attention: Investor Relations, or (702) 567-7000.
Participants in the Merger Solicitation
Pinnacle and Ameristar and their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies in connection with the proposed merger. Information about Pinnacle’s directors and executive officers is included in Pinnacle’s Annual Report on Form 10-K/A for the year ended December 31, 2011, filed with the SEC on May 16, 2012 and the proxy statement for Pinnacle’s 2012 Annual Meeting of Stockholders, filed with the SEC on April 9, 2012. Information about Ameristar’s directors and executive officers is included in Ameristar’s Annual Report on Form 10-K for the year ended December 31, 2011, filed with the SEC on February 28, 2012 and the proxy statement for Ameristar’s 2012 Annual Meeting of Stockholders, filed with the SEC on April 30, 2012. Additional information regarding these persons and their interests in the merger will be included in the proxy statement relating to the merger when it is filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Forward-Looking Statements
This filing may include predictions, estimates and other information that may be considered forward-looking statements, including, without limitation, statements relating to the completion of the transaction. These statements are based on current expectations and assumptions that are subject to risks and uncertainties. Actual results could differ materially from those anticipated as a result of various factors, including: (1) Ameristar may be unable to obtain stockholder approval as required for the transaction; (2) other conditions to the closing of the transaction may not be satisfied or waived; (3) the transaction may involve unexpected costs, liabilities or delays; (4) Ameristar’s business may suffer as a result of uncertainty surrounding the transaction; (5) the outcome of any legal proceedings related to the transaction; (6) Ameristar may be adversely affected by other economic, business and/or competitive factors; (7) the ability and timing to obtain required regulatory approvals (including receipt by Pinnacle of necessary approvals from gaming regulators); (8) Pinnacle’s ability to obtain financing; (9) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement; (10) risks that the transaction disrupts current plans and operations and the potential difficulties in employee retention as a result of the transaction; and (11) other risks to consummation of the transaction, including the risk that the transaction will not be consummated within the expected time period or at all. If the transaction is consummated, Ameristar’s stockholders will cease to have any equity interest in Ameristar and will have no right to participate in its future earnings and growth. Additional factors that may affect the future results of Ameristar are set forth in its filings with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2011 and Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, which are available on the SEC’s website at www.sec.gov. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date thereof. Ameristar undertakes no obligation to update forward-looking statements to reflect events or circumstances after the date thereof.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Ameristar Casinos, Inc. | ||
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By: |
/s/ Peter C. Walsh | |
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Name: |
Peter C. Walsh |
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Title: |
Senior Vice President and General Counsel |
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Dated: February 1, 2013 |
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Exhibit 2.1
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is entered into as of February 1, 2013 (the “Effective Date”), between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (“Parent”), PNK HOLDINGS, INC., a Delaware corporation and a wholly-owned Subsidiary of Parent (“HoldCo”), PNK DEVELOPMENT 32, INC., a Nevada corporation and a wholly-owned Subsidiary of HoldCo (“Merger Sub”) and AMERISTAR CASINOS, INC., a Nevada corporation (the “Company”). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
R E C I T A L S
WHEREAS, the parties hereto entered into that certain Agreement and Plan of Merger dated as of December 20, 2012 by and among Parent, HoldCo, Merger Sub and the Company (the “Merger Agreement”);
WHEREAS, Section 5.15(d) of the Merger Agreement contemplates that, in accordance with terms and conditions therein, Parent may elect to carry out an alternative acquisition structure;
WHEREAS, the parties hereto desire to amend the Merger Agreement with respect to such alternative acquisition structure; and
WHEREAS, pursuant to Section 7.4 of the Merger Agreement, the Merger Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment to the Merger Agreement, signed on behalf of each of the parties in interest at the time of the amendment.
A G R E E M E N T
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Recitals.
(a) The first recital to the Merger Agreement shall be deleted in its entirety and replaced with the following:
“WHEREAS, the parties intend to effect (i) a merger of Merger Sub with and into the Company (the “Planned Merger”) or, at the election of Parent in accordance with the terms and conditions herein, (ii) a merger of HoldCo with and into the Company (the “Alternative Merger,” and each of the Planned Merger and Alternative Merger referred to herein as the “Merger”);”.
(b) The second recital to the Merger Agreement shall be deleted in its entirety and replaced with the following:
“WHEREAS, the board of directors of the Company (the “Company Board”) has determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable to, and in the best interests of, the Company and its stockholders;”.
(c) The following shall be added as the fourth recital to the Merger Agreement:
“WHEREAS, for U.S. federal income tax purposes, the parties intend to treat (i) Merger Sub (in the case of the Planned Merger) and each of Merger Sub and HoldCo (in the case of the Alternative Merger) as a transitory entity that is disregarded and (ii) the Merger as Parent’s taxable purchase of the Company’s common stock;”.
2. Index of Defined Terms.
The Merger Agreement shall be amended to revise the “Index of Defined Terms” to reflect the inclusion, in appropriate alphabetical order, of the defined terms “Articles of Post-Effective Merger,” “Delaware Secretary of State,” “DGCL,” “Planned Merger,” Post-Effective Closing,” and “Post-Effective Merger” (in each case with reference to where such term is defined within the Merger Agreement, as revised by this Amendment) and to revise the location of the defined terms “Alternative Merger,” “Nevada Secretary of State,” and “NRS” to reference where such terms are defined in the Merger Agreement, as revised by this Amendment.
3. The Merger; Effects of the Merger; Articles of Incorporation and Bylaws; Directors; Officers.
(a) Section 1.1 of the Merger Agreement shall be amended to:
(i) delete from the last sentence thereof, the words “subsidiary of HoldCo.” and replace them with the words “, direct or indirect, subsidiary of Parent.”; and
(ii) delete the word “NRS” and replace it with the following phrase:
“Nevada Revised Statutes (the “NRS”) and, in the event of an Alternative Merger, the General Corporation Law of the State of Delaware (the “DGCL”)”.
(b) Sections 1.1., 1.4, 1.5 and 1.6 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
(c) Section 1.3 of the Merger Agreement shall be amended to:
(i) add the following phrase after the words “(the “Nevada Secretary of State”)”:
“and, in the event of a Planned Merger, the Secretary of the State of Delaware (the “Delaware Secretary of State”),”; and
(ii) add the words “and, in the event of a Planned Merger, the DGCL” after the word “NRS”.
(d) Section 1.4 of the Merger Agreement shall be amended to add the words “and, in the event of a Planned Merger, the DGCL” after the word “NRS”.
4. Post-Effective Merger. The Merger Agreement shall be amended to add the following as Section 1.8 of the Merger Agreement:
“Section 1.8 Post-Effective Merger.
(a) In the event Parent, in accordance with the terms and conditions herein, elects to pursue and carry out the Alternative Merger, then immediately following the Effective Time, Parent and the Surviving Corporation shall consummate a subsequent merger (the “Post-Effective Merger”), pursuant to which the Surviving Corporation shall be merged with and into Parent, and the separate existence of the Surviving Corporation shall cease.
(b) Upon the terms and subject to the provisions of this Agreement, as soon as practicable following the Effective Time, Parent and the Surviving Corporation shall cause the articles of merger with respect to the Post-Effective Merger (the “Articles of Post-Effective Merger”) to be filed with the Nevada Secretary of State and the Delaware Secretary of State, and in such form as is required by, and executed in accordance with, the relevant provisions of the NRS and the DGCL, and, as soon as practicable thereafter, shall make any and all other filings or recordings required under the NRS or DGCL. The Post-Effective Merger shall become effective at such date and time as the Articles of Post-Effective Merger are duly filed with the Nevada Secretary of State and the Delaware Secretary of State or at such other date and time as Parent and the Surviving Corporation shall agree in writing and shall specify in the Articles of Post-Effective Merger (the date and time the Post-Effective Merger becomes effective being the “Post-Effective Closing”).
(c) The Post-Effective Merger shall have the effects set forth in this Agreement and in the relevant provisions of the NRS and DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Post-Effective Closing, all the property, rights, privileges, powers and franchises of the Surviving Corporation shall vest in Parent, and all debts, liabilities and duties of the Surviving Corporation shall become the debts, liabilities and duties of Parent.
(d) At the Post-Effective Closing, and without any further action on the part of either the Surviving Corporation or Parent, the articles of incorporation and bylaws of Parent in effect immediately prior to the Post-Effective Closing shall continue to be the articles of incorporation and bylaws of Parent as the surviving corporation of the Post-Effective Merger, until thereafter amended in accordance with their terms and as provided by applicable Law.
(e) The directors and officers of Parent immediately prior to the Post-Effective Closing shall continue to be the directors and officers of Parent as the surviving corporation of the Post-Effective Merger, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified.”.
5. Conversion of Capital Stock. Section 2.1(a)(iii) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
6. Exchange and Payment. Section 2.3(a) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
7. Post-Effective Merger. The Merger Agreement shall be amended to add the following as Section 2.6 of the Merger Agreement:
“Section 2.6 Post-Effective Merger. In the event the Post-Effective Merger is to be carried out in accordance with the terms and conditions of this Agreement, at the Post-Effective Closing, by virtue of the Post-Effective Merger and without any further action on the part of Parent or the Surviving Corporation or their respective stockholders:
(a) each share of common stock, par value $0.01 per share, of Surviving Corporation issued and outstanding immediately prior to the Post-Effective Closing will automatically be canceled and retired and will cease to exist, and no cash or other consideration will be delivered or deliverable in exchange therefor, and
(b) each share of common stock, par value $0.01 per share, of Parent issued and outstanding immediately prior to the Post-Effective Closing will remain outstanding and unaffected by the Post-Effective Merger, and such shares will constitute the only outstanding shares of capital stock of Parent following the Post-Effective Closing.”.
8. Representations and Warranties of the Company.
(a) Article III of the Merger Agreement shall be amended to add the following phrase at the end of the paragraph that appears prior to Section 3.1:
“(it being understood and agreed that, for purposes of this Article III, the phrase “transactions contemplated hereby” shall not be considered to include the Post-Effective Merger and the Parent Entities acknowledge and agree that the Company is making no representations or warranties in this Agreement with respect to the Post-Effective Merger)”.
(b) Section 3.4(b) of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL,” after the word “NRS”.
(c) Sections 3.7 and 3.13 shall be amended to delete the words “and Merger Sub” or “or Merger Sub” in each instance where they appear.
(d) Section 3.23 shall be amended to add “, HoldCo,” after each instance of the word “Parent”, and to add “, HoldCo’s,” after the word “Parent’s”.
9. Representations and Warranties of Parent, HoldCo and Merger Sub.
(a) Section 4.2 of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL” after the word “NRS”.
(b) Section 4.3(b) of the Merger Agreement shall be amended to add the words “and, in the event of an Alternative Merger, the filing with the Delaware Secretary of State as required by the DGCL” after the word “NRS”.
(c) Section 4.7 of the Merger Agreement shall be amended to delete the words “or the Alternative Merger” from the last sentence.
(d) Section 4.10 of the Merger Agreement shall be amended to delete the words “Parent or Merger Sub” and the end thereof and replace them with the following words:
“any of the Parent Entities”.
10. Conduct of Business Pending the Merger.
(a) The underlined section heading to Section 5.2 of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.
(b) The text of Section 5.2 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
11. Acquisition Proposal. The first sentence of Section 5.4(c) shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
12. Access to Information; Confidentiality. Section 5.6(b) of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
13. Regulatory Approval. Section 5.7(c) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
14. Consent Solicitation. Section 5.15(d) of the Merger Agreement shall be amended to read in its entirety as follows:
“(d) If the Consent Solicitation with respect to amendments and waivers to the Indenture necessary to consummate the Alternative Merger is successful, and the requisite consents to amend the Indenture are obtained on terms and conditions set forth in the Consent Solicitation Statement, Parent may elect in its sole discretion to carry out the Alternative Merger.”
15. Financing. Section 5.16 of the Merger Agreement shall be amended to add the following phrase after each instance of the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
16. Conditions to Obligations of the Company.
(a) Section 6.2(a) of the Merger Agreement shall be amended to:
(i) add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”; and
(ii) add the following as the second sentence of Section 6.2(a):
“For the avoidance of doubt, if Parent elects, in accordance with the terms and conditions of this Agreement, to pursue and carry out the Alternative Merger, all representations and warranties in Article IV with respect to Merger Sub (other than with respect to Section 4.9) shall be disregarded for purposes of this Section 6.2(a).”.
(b) The underlined section heading to Section 6.2(b) of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.
(c) The text of Section 6.2(b) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
17. Conditions to Obligations of Parent and Merger Sub.
(a) The underlined section heading to Section 6.3 of the Merger Agreement shall be amended to add “or HoldCo” after the words “Merger Sub”.
(b) The first sentence and the last sentence of Section 6.3 shall be amended to add the following phrase after each instance of the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
18. Frustration of Closing Conditions. Section 6.4 of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
19. Termination. Section 7.1(d)(i) of the Merger Agreement shall be amended to add the following phrase after the words “Merger Sub”:
“(in the event of a Planned Merger) or HoldCo (in the event of an Alternative Merger)”.
20. No Presumption Against Drafting Party. Section 8.15 of the Merger Agreement shall be amended to add “HoldCo,” after the word “Parent”.
21. Personal Liability. Section 8.16 of the Merger Agreement shall be amended to add “HoldCo (other than Parent),” after the word “Parent”.
22. Binding Amendment. This Amendment constitutes a valid amendment of the Merger Agreement. In the event of any conflict between the provisions of the Merger Agreement and the provisions of this Amendment, the provisions of this Amendment shall control.
23. Further Assurances. Each party hereto agrees to execute and deliver to the other parties hereto such other documents and information and to do such further acts as the requesting party may reasonably request to further effect the transactions contemplated by this Amendment.
24. No Other Amendments. Except for the amendments expressly set forth above, the text of the Merger Agreement shall remain unchanged and in full force and effect.
25. Reference to and Effect on the Merger Agreement. Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended hereby.
26. Incorporation by Reference. Sections 8.7, 8.8, 8.9, 8.11, 8.12, 8.13, 8.14, and 8.15 of the Merger Agreement are hereby incorporated by reference and shall apply mutatis mutandis to this Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the day and year first written above.
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PINNACLE ENTERTAINMENT, INC. | |
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By: |
/s/ Anthony Sanfilippo |
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Name: Anthony Sanfilippo |
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Title: President and Chief Executive Officer |
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PNK HOLDINGS, INC. | |
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By: |
/s/ Anthony Sanfilippo |
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Name: Anthony Sanfilippo |
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Title: President |
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PNK DEVELOPMENT 32, INC. | |
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By: |
/s/ Anthony Sanfilippo |
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Name: Anthony Sanfilippo |
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Title: President |
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AMERISTAR CASINOS, INC. | |
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By: |
/s/ Gordon R. Kanofsky |
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Name: Gordon R. Kanofsky |
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Title: Chief Executive Officer |