AMENDMENT NO. 23 TO SCHEDULE 13D
The following constitutes Amendment No. 23 (“Amendment No. 23”) to the Schedule 13D filed by the undersigned. Such Schedule 13D is hereby amended as follows:
| ITEM 3. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
Item 3 is hereby amended to add the following:
On June 20, 2010, Parent, Merger Sub, Fertitta and Landry’s entered into the Second Amendment to Agreement and Plan of Merger (the “Second Amendment”). Pursuant to the Merger Agreement, as amended by the First Amendment and the Second Amendment, each outstanding share of Common Stock (other than shares owned by Parent, Merger Sub or any direct or indirect wholly-owned subsidiary of Parent (including the Rollover Stock), shares held in the treasury of Landry’s and shares owned by stockholders who perfect appraisal rights under applicable law) will be cancelled and converted automatically into the right to receive $24.50 in cash, without interest. The aggregate value of the transactions contemplated by the Merger Agreement, as amended by the First Amendment and the Second Amendment, is appro ximately $1.4 billion.
In connection with the Second Amendment, on June 20, 2010, Fertitta and Parent amended the Equity Commitment Letter (the “Equity Commitment Second Amendment”) to reflect the amended per share consideration.
| ITEM 4. | PURPOSE OF TRANSACTION |
Item 4 is hereby amended to add the following:
On June 20, 2010, Parent, Merger Sub, Fertitta and Landry’s entered into the Second Amendment. Pursuant to the Merger Agreement, as amended by the First Amendment and the Second Amendment, each outstanding share of Common Stock (other than shares owned by Parent, Merger Sub or any direct or indirect wholly-owned subsidiary of Parent (including the Rollover Stock), shares held in the treasury of Landry’s and shares owned by stockholders who perfect appraisal rights under applicable law) will be cancelled and converted automatically into the right to receive $24.50 in cash, without interest.
The summary of the Second Amendment contained herein does not purport to be complete and is qualified in its entirety by reference to the Second Amendment, which is filed herewith as Exhibit 99.1 and incorporated herein by reference.
| ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER. |
| | Items 5(a) is hereby amended and restated as follows: |
(a) AGGREGATE NUMBER AND PERCENTAGE OF SECURITIES BENEFICIALLY OWNED:
Fertitta is the direct beneficial owner of 9,694,155 shares of Common Stock, including (i) options to acquire 800,000 shares of Common Stock which are immediately exercisable or will become exercisable within 60 days of the date hereof and (ii) 775,000 shares of restricted Common Stock, 500,000 shares of which vest 10 years from the effective date of grant and 275,000 shares of which vest 7 years from the effective date of grant, representing in the aggregate approximately 56.9% of the shares of Common Stock outstanding based on 16,236,435 shares of Common Stock outstanding as of May 7, 2010, as reported in Landry’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2010 filed with the Securities and Exchange Commission on May 10, 2010.
Parent may also be deemed to beneficially own 9,694,155 shares of Common Stock, including (i) options to acquire 800,000 shares of Common Stock which are immediately exercisable or will become exercisable within 60 days of the date hereof and (ii) 775,000 shares of restricted Common Stock, 500,000 shares of which vest 10 years from the effective date of grant and 275,000 shares of which vest 7 years from the effective date of grant, beneficially owned by Fertitta, as Fertitta has agreed to contribute such shares of Common Stock to Parent pursuant to the Equity Commitment Letter, as amended by the Equity Commitment Amendment and the Equity Commitment Second Amendment.
| ITEM 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
Item 6 is hereby amended to add the following:
On June 20, 2010, Parent, Merger Sub, Fertitta and Landry’s entered into the Second Amendment, as defined and described in Items 3 and 4 above.
Also on June 20, 2010, Fertitta and Parent entered into the Equity Commitment Second Amendment, as defined and described in Item 3 above.
Concurrently with the Second Amendment, Landry’s entered into voting agreements with certain stockholders, including Pershing Square Capital Management, L.P. and Richard T. McGuire. Pursuant to those voting agreements, such stockholders agreed to vote the Landry’s shares beneficially owned by them for the Merger, on the terms and subject to the terms and conditions set forth in the voting agreements. Each voting agreement will terminate when the first of the following occurs: (a) the Merger closes; (b) Landry’s and the applicable stockholders agree (subject to the consent of Parent) to terminate the voting agreement; (c) the Merger Agreement is further amended, or any provision thereunder is waived, that reduces or changes the form of the merger consideration, adds or modifies any closing condition, materially delays the closing of the Merger or adversely affects in any material respect the rights or obligations of the parties under the voting agreement as of the date of the voting agreement; (d) Landry’s Special Committee (or if the Special Committee is dissolved, Landry’s Board of Directors or another committee of Landry’s Board of Directors) determines a competing proposal is a superior proposal; (e) the Merger Agreement is terminated, including in connection with a superior proposal; and (f) December 31, 2010. Parent is not a party to the voting agreements but is a third party beneficiary under each of the voting agreements. The summary of the voting agreements contained herein does not purport to be complete. The voting agreements are filed as exhibits to the Schedule 13D filed by such stockholders with the Securities and Exchange Commission.
| ITEM 7. | MATERIAL TO BE FILED AS EXHIBITS |
| | Item 7 is hereby amended to add the following exhibit: |
| | 99.1 | Second Amendment to Agreement and Plan of Merger, dated as of June 20, 2010, by and among Parent, Merger Sub, Fertitta, solely for purposes of Sections 7.10, 7.11 and 9.03(b) and Article X, and Landry’s (incorporated by reference to Exhibit 2.1 of Landry’s Current Report on Form 8-K, filed June 22, 2010). |
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
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| | /s/ Tilman J. Fertitta |
| | Tilman J. Fertitta |
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| | FERTITTA GROUP, INC. | |
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| | By: | /s/ Tilman J. Fertitta | |
| | | Name: | Tilman J. Fertitta | |
| | | Title: | Chief Executive Officer and President | |
