AGREEMENT AND PLAN OF MERGERAgreement and Plan of Merger |
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Search Agreement and Plan of Merger by:
Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF
MERGER
Dated as of May 11, 2006
by
and
among
MORGANS HOTEL GROUP CO.,
MHG HR ACQUISITION CORP.,
HARD ROCK
HOTEL, INC.
and
PETER A. MORTON
TABLE OF CONTENTS
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ARTICLE I |
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SECTION 1.1 |
The Merger |
1 |
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SECTION 1.2 |
Effective Time |
1 |
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SECTION 1.3 |
Closing of the Merger |
2 |
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SECTION 1.4 |
Effects of the Merger |
2 |
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SECTION 1.5 |
Articles of Incorporation and Bylaws |
2 |
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SECTION 1.6 |
Directors |
2 |
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SECTION 1.7 |
Officers |
2 |
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ARTICLE II |
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CONVERSION OF SHARES; CONSIDERATION |
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SECTION 2.1 |
Conversion of Shares. |
2 |
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SECTION 2.2 |
Total Transaction Consideration; Adjustments. |
3 |
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SECTION 2.3 |
Merger Fund; Exchange of Certificates. |
8 |
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SECTION 2.4 |
Dissenters’ Rights |
11 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 3.1 |
Representations and Warranties of the Company |
11 |
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SECTION 3.2 |
Representations and Warranties of Parent and Merger Sub |
18 |
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ARTICLE IV |
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COVENANTS |
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SECTION 4.1 |
Conduct of Business |
20 |
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SECTION 4.2 |
Access to Information; Confidentiality. |
22 |
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SECTION 4.3 |
Consents and Governmental Approvals |
23 |
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SECTION 4.4 |
Company Bonds; Credit Agreement |
24 |
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SECTION 4.5 |
Employee Benefit Plans |
25 |
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SECTION 4.6 |
[INTENTIONALLY OMITTED] |
27 |
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SECTION 4.7 |
Financial Information |
27 |
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SECTION 4.8 |
[INTENTIONALLY OMITTED]. |
27 |
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SECTION 4.9 |
Publicity |
27 |
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SECTION 4.10 |
Certain Understandings. |
27 |
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SECTION 4.11 |
Taxes |
28 |
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SECTION 4.12 |
Certain Notifications |
28 |
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SECTION 4.13 |
Indemnification of Directors and Officers. |
28 |
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SECTION 4.14 |
Debt Financing |
29 |
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SECTION 4.15 |
Further Assurances |
29 |
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SECTION 4.16 |
Selected Memorabilia |
30 |
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SECTION 4.17 |
Termination of Affiliate Agreements |
30 |
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SECTION 4.18 |
Other Transaction Documents |
30 |
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ARTICLE V |
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CONDITIONS PRECEDENT |
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SECTION 5.1 |
Conditions Precedent to Each Party’s Obligations |
30 |
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SECTION 5.2 |
Conditions Precedent to Parent’s and Merger Sub’s Obligations |
31 |
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SECTION 5.3 |
Conditions Precedent to the Company’s Obligations |
31 |
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ARTICLE VI |
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TERMINATION |
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SECTION 6.1 |
Termination |
32 |
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SECTION 6.2 |
Effect of Termination. |
33 |
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SECTION 6.3 |
Specific Performance |
36 |
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ARTICLE VII |
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SURVIVAL; INDEMNIFICATION |
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SECTION 7.1 |
Survival of Representations, Warranties and Covenants |
36 |
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SECTION 7.2 |
Obligation of Stockholders |
36 |
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SECTION 7.3 |
Obligation of Parent |
37 |
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SECTION 7.4 |
Minimum Losses |
37 |
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SECTION 7.5 |
Maximum Indemnification |
37 |
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SECTION 7.6 |
No Tax Attribute Indemnity |
37 |
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SECTION 7.7 |
Notice; Procedure for Third-Party Claims |
37 |
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SECTION 7.8 |
Survival of Indemnity |
38 |
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SECTION 7.9 |
No Consequential Damages |
39 |
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SECTION 7.10 |
No Double Recovery |
39 |
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ARTICLE VIII |
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DEFINITIONS |
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SECTION 8.1 |
Definitions |
39 |
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SECTION 8.2 |
Interpretation |
42 |
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ARTICLE IX |
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MISCELLANEOUS |
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SECTION 9.1 |
Notices |
42 |
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SECTION 9.2 |
Severability |
44 |
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SECTION 9.3 |
Counterparts |
44 |
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SECTION 9.4 |
Mutual Drafting |
44 |
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SECTION 9.5 |
Entire Agreement |
44 |
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SECTION 9.6 |
Governing Law; Jurisdiction |
44 |
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SECTION 9.7 |
Amendment; Waiver |
44 |
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SECTION 9.8 |
Assignment |
44 |
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SECTION 9.9 |
No Third-Party Beneficiaries |
45 |
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SECTION 9.10 |
Stockholders’ Representative. |
45 |
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SECTION 9.11 |
Arbitration |
45 |
ii
EXHIBITS
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Exhibit A |
Copy of PMR Purchase and Sale Agreement |
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Exhibit B |
Form of Trademark Agreement |
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Exhibit C |
Copy of Escrow Agreement |
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Exhibit D |
Form of License Agreement |
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Exhibit E |
Form of Morton Trademark Assignment |
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Exhibit F |
Copy of Action by Written Consent |
iii
TABLE OF DEFINITIONS
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Defined Term |
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Initial Section Reference |
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Accountants |
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2.2(c)(ii) |
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Additional Consideration |
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2.2(a)(i) |
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Affected Employee |
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4.5(a) |
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Affiliate |
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8.1 |
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Affiliate Agreements |
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4.17 |
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Agreement |
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First Paragraph |
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Applicable First Call Date |
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8.1 |
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Applicable Percentage |
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2.2(a)(ii) |
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Articles of Merger |
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1.2 |
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Business Day |
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8.1 |
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Cage Cash |
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2.2(a)(ix) |
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Class A Company Common Stock |
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2.1(a)(i) |
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Class B Company Common Stock |
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2.1(a)(i) |
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Closing |
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1.3 |
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Closing Balance Sheet |
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2.2(c) |
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Closing Date |
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1.3 |
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Closing Date Cage Cash |
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2.2(c) |
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Closing Date Working Capital |
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2.2(c) |
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Closing Schedule |
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2.2(c) |
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Company |
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First Paragraph |
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Company Bonds |
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8.1 |
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Company Common Stock |
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2.1(a)(i) |
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Company Condition Failure |
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6.1(c) |
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Company Consents |
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3.1(e) |
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Company Disclosure Letter |
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8.1 |
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Company Intellectual Property |
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3.1(q) |
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Company Junior Notes |
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8.1 |
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Company SEC Report |
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3.1(f) |
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Company SEC Reports |
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3.1(f) |
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Company Second Lien Notes |
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8.1 |
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Confidentiality Agreement |
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4.2(c) |
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Contract |
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8.1 |
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Credit Agreement |
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8.1 |
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Deposit |
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2.2(d) |
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Disputed Holdback Amount |
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2.2(c)(ii) |
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Dissenting Shares |
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2.4 |
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Effective Time |
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1.2 |
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Employee Benefit Plan |
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3.1(m) |
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Enterprise Price |
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2.2(a)(vii) |
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Environmental Laws |
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3.1(s) |
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ERISA |
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3.1(o)(ii) |
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ERISA Affiliate |
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3.1(o)(v) |
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Escrow Agent |
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2.2(d) |
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Escrow Agreement |
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2.2(d) |
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Escrow Costs |
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2.2(e) |
iv
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Estimated Cage Cash |
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2.2(b)(i) |
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Estimated Working Capital |
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2.2(b)(i) |
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Exchange Act |
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3.1(f) |
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Expense Reimbursement |
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6.2(b)(iv) |
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Expiration Date |
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7.1 |
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Final Adjustments |
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2.2(c)(iii) |
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Final Adjustment Consideration |
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2.2(c)(iv), 2.2(c)(iii)(2) |
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Final Adjustment Date |
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2.2(c)(iii) |
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Final Balance Sheet Adjustment |
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2.2(c)(iii)(2) |
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Final Determination Date |
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2.2(c)(ii) |
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Final Holdback Amount |
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2.2(c)(iii) |
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Financial Statements |
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3.1(f) |
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Financing |
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3.2(e) |
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Financing Commitments |
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3.2(e) |
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GAAP |
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3.1(f) |
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Gaming Approvals |






