EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
NEW EMPRESS JOLIET, INC.,
an Illinois corporation
INTO
EMPRESS CASINO JOLIET CORPORATION
an Illinois corporation
This AGREEMENT AND PLAN OF MERGER, dated as of the 1st day of June, 1998,
by and among New Empress Joliet, Inc., an Illinois corporation (the "Merging
Corporation"), Empress Casino Joliet Corporation, an Illinois corporation
(referred to herein as ("Empress Joliet" or the "Surviving Corporation"), and
Empress Entertainment, Inc., a Delaware corporation ("Entertainment"). The
Merging Corporation and the Surviving Corporation are sometimes referred to as
the "Constituent Corporations."
WHEREAS, the Merging Corporation and the Surviving Corporation are
corporations duly organized and existing under the laws of the State of
Illinois, and Entertainment is a corporation duly organized and existing under
the laws of the State of Delaware and the parent of the Merging Corporation; and
WHEREAS, the Boards of Directors of the Constituent Corporations and
Entertainment deem it advisable for the general welfare and advantage of the
Constituent Corporations and their stockholders that the Constituent
Corporations merge into a single corporation pursuant to this Agreement and the
Illinois Business Corporation Act.
NOW, THEREFORE, the parties agree that the Constituent Corporations shall
be merged on the following terms and conditions:
1. The Merger. At the Effective Time (as defined below) of the merger,
the Merging Corporation shall be merged with and into Empress Joliet and the
separate existence of the Merging Corporation shall cease (the "Merger").
Following the consummation of the Merger, Empress Joliet shall continue its
corporate existence as the wholly-owned subsidiary of Entertainment. The name of
the Surviving Corporation following the Effective Time shall be "Empress Casino
Joliet Corporation."
2. Effective Time. The parties hereto shall cause the Merger to be
consummated by filing a certificate of merger (the "Certificate of Merger") with
the Secretary of State of Illinois, in such form as required by, and executed in
accordance with the relevant provisions of, the Illinois Business Corporation
Act. The effective time of the Merger shall be upon filing with the Secretary of
State of Illinois (the "Effective Time").
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3. Articles of Incorporation and By-Laws.
(a) The Articles of Incorporation of Empress Joliet at the effective
time of the Merger shall be the Articles of Incorporation of the Surviving
Corporation until amended as provided by law.
(b) The By-Laws of Empress Joliet at the effective time of the Merger
shall be the By-Laws of the Surviving Corporation until altered or amended in
accordance with the provisions thereof and Delaware law.
4. Directors and Officers. Subject to applicable law, the initial
directors and officers of the Surviving Corporation immediately after the
Effective Time shall be those persons who are the directors and officers of
Empress Joliet immediately prior to the Effective Time, to hold office until
their respective successors are duly elected or appointed and qualified, or
their earlier death, resignation or removal.
5. Condition to Merger. Each of the following shall be a condition
precedent to the filing of the Certificate of Merger:
(a) Entertainment and its stockholders shall have executed and
delivered an Amended and Restated Stockholders Agreement (the "Stockholders
Agreement") substantially similar to the existing stockholders agreement between
Empress Joliet and the shareholders of Empress Joliet, or in such other form
approved by Entertainment and at least 75% of its stockholders.
(b) The stockholders of Entertainment and the shareholders of Empress
Joliet shall have approved the Merger in accordance with applicable law and,
with respect to the shareholders of Empress Joliet, the provisions of the
Empress Joliet Shareholders Agreement.
6. Terms of Merger.
(a) From and after the Effective Time of the Merger, the Surviving
Corporation shall possess all the rights, privileges, immunities, and franchises
of a public, as well as of a private nature, of each of the Constituent
Corporations; and all property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares and all other choses in
action, and all and every other interest, of or belonging to or due to each of
the Constituent Corporations, shall be taken and deemed to be transferred to and
vested in the Surviving Corporation without further act or deed; and the title
to any real estate, or any interest therein, vested in any of the Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger,
provided, however, that the Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of each of the
Constituent Corporations, and any claim existing or action or preceding pending
by or against either of the Constituent Corporations may be prosecuted to
judgment as if the Merger had not taken place, or
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the Surviving Corporation may be substituted in its place, and neither the
rights of creditors nor any liens upon the property of either of the Constituent
Corporations shall be impaired by the Merger.
(b) As of the Effective Time, by virtue of the Merger and without any
action on the part of the holders thereof, (i) each share of Common Stock of
Empress Joliet issued and outstanding immediately prior to the Effective Time
shall be canceled and converted into the right to receive 0.53 shares of the
Common Stock of Entertainment and 0.12 shares of the Non-Voting Common Stock of
Entertainment, (ii) each share of capital stock of the Merging Corporation
issued and outstanding immediately prior to the Effective Time shall be canceled
and extinguished and be converted into and become one fully paid and
nonassessable share of Common Stock of the Surviving Corporation; and (iii) each
share of Common Stock of Entertainment and each share of Non-Voting Common Stock
of Entertainment issued and outstanding immediately prior to the Effective Time
shall be canceled and converted into the right to receive one share of the
Common Stock of Entertainment and one share of the Non-Voting Common Stock of
Entertainment, respectively; provided, however, that the shares of the Common
Stock and Non-Voting Common Stock of Entertainment to be issued upon conversion
shall not be issued to a shareholder unless and until such shareholder has
executed and delivered to Entertainment the Amended and Restated Stockholders
Agreement or an agreement to be bound by the provisions thereof.
(c) The Surviving Corporation shall pay all expenses of carrying the
Plan into effect and accomplishing the Merger provided for herein.
(d) The proper officers and directors of the Constituent Corporations
and Entertainment shall execute and deliver all such documents and take all such
actions as may be necessary or advisable, or as may be requested by the
Surviving Corporation or Entertainment from time to time, in order to vest fully
all the property rights of the Constituent Corporations in the Surviving
Corporation and otherwise carry out this Plan.
(e) Anything herein or elsewhere to the contrary notwithstanding, this
Plan may be abandoned by the mutual consent of the Constituent Corporations and
Entertainment, evidenced by appropriate resolutions of their respective Board of
Directors, at any time prior to the Effective Time of the Merger.
(f) Promptly after the Effective Time, the Surviving Corporation shall
duly and properly file an election to be a Qualified Subchapter S Subsidiary.
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IN WITNESS WHEREOF, Entertainment and each of the Constituent Corporations
has caused this Agreement to be signed by its duly authorized officer on the day
and year first above written.
EMPRESS CASINO JOLIET CORPORATION EMPRESS ENTERTAINMENT, INC.
By:_______________________________ By:_______________________________
Name:_____________________________ Name:_____________________________
Its:______________________________ Its:______________________________
NEW EMPRESS JOLIET, INC.
By:_______________________________
Name:_____________________________
Its:______________________________
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