Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
DATED AS OF
November 12, 2001
AMONG
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.,
GAMECO, INC.
AND
BH ACQUISITION, INC.
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
entered into as of November 12, 2001 by and among Gameco, Inc., a Delaware
corporation ("Parent"), BH Acquisition, Inc., a Colorado corporation and wholly
owned subsidiary of Parent ("Merger Subsidiary"), and Black Hawk Gaming &
Development Company, Inc., a Colorado corporation (the "Company"). Parent,
Merger Subsidiary and the Company are referred to collectively herein as the
"Parties."
WHEREAS, the Parties are parties to an Agreement and Plan of Merger dated
as of April 25, 2001 (the "Merger Agreement"), which permits any party thereto
to terminate the Merger Agreement under specified circumstances if the
transactions provided for therein are not consummated on or before December 31,
2001;
WHEREAS, the September 11, 2001 terrorist attacks in New York City and
Washington, D.C. and ensuing events have disrupted the financial markets and
made it impracticable for Parent and the Company to obtain the contemplated
financing to consummate those transactions on or before December 31, 2001; and
WHEREAS, in light of the foregoing and the Parties' continuing belief that
consummation of the transactions contemplated by the Merger Agreement is in the
best interests of the Parties and of the Company's shareholders, the Parties
desire to extend the date on which the Merger Agreement may be so terminated;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
Section 1. Parent and Merger Subsidiary Representations and Warranties.
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Parent and Merger Subsidiary jointly and severally represent and warrant to the
Company that (a) each of Parent and Merger Subsidiary has full corporate power
and authority to enter into this Amendment, (b) this Amendment has been approved
and adopted by the Boards of Directors of Parent and Merger Subsidiary and
Parent as the sole stockholder of Merger Subsidiary, and no other corporate or
similar proceeding on the part of Parent or Merger Subsidiary is necessary to
authorize the execution and delivery of this Amendment, and (c) this Amendment
has been duly executed and delivered by each of Parent and Merger Subsidiary
and, assuming the due authorization, execution and delivery hereof by the
Company, constitutes a valid and legally binding agreement of each of Parent and
Merger Subsidiary enforceable against each of them in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) general equitable
principles.
Section 2. Company Representations and Warranties. The Company represents
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and warrants to Parent and Merger Subsidiary that (a) the Company has the
requisite corporate power and authority to enter into this Amendment, (b) this
Amendment has been approved and adopted by the Board of Directors of the
Company, and no other corporate proceedings on the part of the Company are
necessary to authorize the execution and delivery of this Amendment, and (c)
this Amendment has been duly executed and delivered by the Company, and,
assuming the due authorization, execution and delivery hereof by Parent and
Merger Subsidiary, constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance
with its terms, except that such enforcement may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles.
Section 3. Amendment. The parties hereby amend the Merger Agreement by
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deleting the phrase "December 31, 2001" in section 7.01(ii) of the Merger
Agreement and inserting in lieu thereof the phrase "April 1, 2002."
Section 4. Effect. The Merger Agreement, as amended hereby, remains in full
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force and effect, and all references therein to the "Agreement" refer to the
Merger Agreement as amended by this Amendment, except where the context requires
otherwise.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC.
/s/ Stephen R. Roark
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Name: Stephen R. Roark
Title: President
GAMECO, INC.
/s/ Jeffrey P. Jacobs
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Name: Jeffrey P. Jacobs
Title: President
Merger Subsidiary:
BH ACQUISITION, INC.
/s/ Jeffrey P. Jacobs
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Name: Jeffrey P. Jacobs
Title: President
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