<PAGE>
As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
ISLE OF CAPRI CASINOS, INC.
(Exact name of registrant as specified in its charter)
(For co-registrants, please see Table of Other Registrants on the following
page)
Delaware 7993 41-1659606
(State or other
jurisdictionof
incorporation or
organization)
(Primary standard industrial classification code number)
(I.R.S. Employer
Identification No.)
711 Washington Loop, Second Floor
Biloxi, Mississippi 39530
(228) 436-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
ALLAN B. SOLOMON
Executive Vice President, General Counsel and Secretary
2200 Corporate Boulevard, N.W., Suite 310
Boca Raton, Florida 33431
(561) 995-6660
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Paul W. Theiss, Esq.
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
--------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered per unit offering price registration fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 3/4% Senior Subordinated Notes due April 15,
2009, Series B................................. $390,000,000 100%(1) $390,000,000(1) $108,420
- ---------------------------------------------------------------------------------------------------------------
Subsidiary Guarantees of 8 3/4% Senior
Subordinated Notes due April 15, 2009, Series
B.............................................. $390,000,000 None(2) None(2) None(2)
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Calculated based on the book value of the securities to be received by the
registrant in the exchange in accordance with Rule 457(f)(2) under the
Securities Act of 1933.
(2) Pursuant to Rule 457(n) under the Securities Act of 1933, no separate fee
is payable for the subsidiary guarantees.
--------------
The co-registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the co-registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF OTHER REGISTRANTS
<TABLE>
<CAPTION>
Exact name of registrant State of Primary standard
as specified in its incorporation I.R.S. Employer industrial classification
charter or organization Identification No. code number
- ------------------------ --------------- ------------------- -------------------------
<S> <C> <C> <C>
CSNO, Inc............... Louisiana 72-1228496 7993
Grand Palais Riverboat,
Inc.................... Louisiana 72-1235423 7993
IOC-Coahoma, Inc........ Mississippi Application Pending 7993
Isle of Capri Casino-
Tunica, Inc............ Mississippi 64-0907593 7993
Isle of Capri Casino
Colorado, Inc.......... Colorado 64-0863907 7993
Isle of Capri Hotels-
Bossier City, L.L.C.... Louisiana 72-1424108 7993
Louisiana Riverboat
Gaming Partnership..... Louisiana 72-1235811 7993
LRG Hotels, L.L.C....... Louisiana 72-1243404 7993
LRGP Holdings, Inc...... Louisiana 64-0863948 7993
PPI, Inc................ Florida 65-0585198 7993
Riverboat Corporation of
Mississippi............ Mississippi 64-0795563 7993
Riverboat Corporation of
Mississippi-Vicksburg.. Mississippi 42-1400605 7993
Riverboat Services,
Inc.................... Iowa 42-1360145 7993
St. Charles Gaming
Company, Inc........... Louisiana 72-1235262 7993
</TABLE>
----------------
c/o Isle of Capri Casinos, Inc.
711 Washington Loop, Second Floor
Biloxi, Mississippi 39530
(228) 436-7000
(Address, including zip code, and telephone number, including area code, of
each of the co-registrant's principal executive offices)
----------------
Allan B. Solomon
Executive Vice President, General Counsel and Secretary
2200 Corporate Boulevard, N.W., Suite 310
Boca Raton, Florida 33431
(561) 995-6660
(Name, address, including zip code, and telephone number, including area code,
of agent for service for each of the co-registrants)
----------------
Copy to:
Paul W. Theiss, Esq.
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is incomplete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, dated July 2, 1999
PROSPECTUS
ISLE OF CAPRI CASINOS, INC.
Offer to Exchange up to $390,000,000 of its
8 3/4% Senior Subordinated Notes due 2009, Series B
for all of its outstanding
8 3/4% Senior Subordinated Notes due 2009, Series A
-----------
. The exchange offer expires at 5:00 p.m., New York City time, on , 1999,
unless extended.
. The exchange offer is subject only to the conditions that the exchange offer
will not violate any applicable law or any interpretation of applicable law
by the staff of the Securities and Exchange Commission.
. All outstanding notes that are validly tendered and not validly withdrawn
will be exchanged.
. Tenders of outstanding notes may be withdrawn at any time before 5:00 p.m.,
New York City time, on the expiration date of the exchange offer.
. The exchange of notes will not be a taxable exchange for U.S. federal income
tax purposes.
. We will not receive any proceeds from the exchange offer.
. The terms of the new notes to be issued are substantially identical to your
old notes, except that the new notes will not have transfer restrictions and
you will not have registration rights.
. There is no established trading market for the new notes, and we do not
intend to apply for listing of the new notes on any securities exchange.
-----------
For a discussion of factors that you should consider before you participate
in the exchange offer, see "Risk Factors" beginning on page 10 of this
prospectus.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful and complete. Any representation to the contrary is
a criminal offense.
-----------
None of the Louisiana Gaming Control Board, the Mississippi Gaming
Commission, the Colorado Limited Gaming Control Commission or any other
regulatory agency has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary
is unlawful.
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Incorporation of Information Isle of Capri Files with the SEC.............. i
Forward-Looking Statements................................................. ii
Where You Can Find More Information........................................ ii
Prospectus Summary......................................................... 1
Risk Factors............................................................... 10
Isle of Capri Casinos, Inc................................................. 17
Use of Proceeds............................................................ 17
The Exchange Offer......................................................... 18
Description of the Notes................................................... 28
Specific Federal Income Tax Considerations................................. 61
Plan of Distribution....................................................... 62
Legal Matters.............................................................. 62
Independent Auditors....................................................... 63
</TABLE>
----------------
You should rely only on the information contained in or incorporated by
reference into this prospectus. We have not authorized any other person to
provide you with different or additional information. If anyone provides you
with different or additional information, you should not rely on it. The
information in this prospectus is accurate as of the date on the front cover.
The information we have filed and will file with the Securities and Exchange
Commission that is incorporated by reference into this prospectus is accurate
as of the filing date of those documents. Our business, financial condition,
results of operations and prospects may have changed since those dates and may
change again.
INCORPORATION OF INFORMATION ISLE OF CAPRI FILES WITH THE SEC
This prospectus "incorporates by reference" important business and financial
information about our company that is not included in or delivered with the
prospectus. This means:
. incorporated documents are considered part of this prospectus;
. we can disclose important information to you by referring you to those
documents; and
. information that we file with the Securities and Exchange Commission
will automatically update and supersede this prospectus.
The following documents are incorporated into this prospectus by reference:
. our Annual Report on Form 10-K for the fiscal year ended April 25, 1999;
and
. all documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and
before the exchange offer is complete.
You may obtain copies of the information incorporated by reference into this
prospectus without charge upon oral or written request to: Isle of Capri
Casinos, Inc.; Attention: Chief Financial Officer; 711 Washington Loop, Biloxi,
Mississippi, 39530; Telephone: (228) 436-7000.
To obtain timely delivery of any of this information, you must make your
request at least five business days prior to the expiration of the exchange
offer. The date by which you must make your request is , 1999.
i
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-looking
statements as they are defined in the Securities Act of 1933 and the Securities
Exchange Act of 1934. We based these forward-looking statements on our current
expectations and our projections about future events. These forward-looking
statements could be negatively affected by risks, uncertainties and assumptions
about us, including, among other things:
. the effect of general economic, credit and capital market conditions on
our business;
. competition in our existing and any future markets;
. changes in gaming laws and regulations;
. our failure to obtain or retain licenses or regulatory approvals;
. our failure to complete or successfully operate planned expansion
projects;
. our failure to obtain adequate financing to meet our goals; and
. the other factors described in the "Risk Factors" section.
All future written and oral forward-looking statements made by us or on our
behalf are also subject to these factors. We undertake no obligation to
publicly update or revise any forward-looking statements, whether as a result
of new information, future events or otherwise. In light of these risks,
uncertainties and assumptions, the forward-looking events discussed in or
incorporated by reference into this prospectus might not occur.
WHERE YOU CAN FIND MORE INFORMATION
You may read and copy the reports, statements and other information we file
with the Securities and Exchange Commission at the Securities and Exchange
Commission's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. You can request copies of these documents by writing to the Securities
and Exchange Commission but must pay photocopying fees. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information on
the operation of the public reference rooms. Our Securities and Exchange
Commission filings are also available to the public on the Securities and
Exchange Commission's Internet site (http://www.sec.gov). These documents and
other information about our company that we file with the Securities Exchange
Commission are also available for viewing at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
ii
<PAGE>
PROSPECTUS SUMMARY
This summary contains basic information about this exchange offer. This
summary does not contain all of the information that may be important to you in
deciding wether to participate in the exchange offer. We encourage you to read
the entire prospectus, including the information described under the heading
"Risk Factors," and the business and financial information incorporated by
reference into this prospectus before you participate in the exchange offer.
Unless the context otherwise requires, the terms "Isle of Capri," "we," "our,"
"us" and other similar terms mean Isle of Capri Casinos, Inc. and all of its
subsidiaries.
The Exchange Offer
We sold $390.0 million of our 8 3/4% Senior Subordinated Notes due 2009,
Series A, to the initial purchasers on April 23, 1999. The initial purchasers
resold those notes in reliance on Rule 144A, Regulation S and other exemptions
under the Securities Act of 1933.
We entered into a registration rights agreement with the initial purchasers
on April 23, 1999 in which we agreed, among other things, to:
. file a registration statement with the Securities and Exchange Commission
relating to the exchange offer on or before July 7, 1999;
. deliver to you this prospectus;
. cause the registration statement, which includes this prospectus, to
become effective on or before August 21, 1999; and
. complete the exchange offer within 30 business days after the
registration statement becomes effective.
You are entitled to exchange your old notes for new registered 8 3/4% Senior
Subordinated Notes due 2009, Series B, with substantially identical terms as
the old notes, except for transfer restrictions and registration rights. If we
do not complete the exchange offer on or before 30 business days after the
registration statement becomes effective, the interest rate on your notes will
be increased. You should read the discussion under the heading "The Exchange
Offer--Purpose and Effect; Registration Rights" and "Description of the Notes"
for further information regarding the new notes that we are offering in
exchange for your old notes.
We believe that you may resell the new notes issued in the exchange offer
without compliance with the registration and prospectus delivery provisions of
the Securities Act of 1933, subject to the conditions described under "The
Exchange Offer." You should read that section for further information regarding
the exchange offer.
Isle of Capri Casinos, Inc.
We are a leading developer, owner and operator of branded gaming and related
lodging and entertainment facilities in growing markets in the United States.
Our principal executive office is located at 711 Washington Loop, Second Floor,
Biloxi, Mississippi 39530. Our telephone number is (228) 436-7000. We maintain
an Internet web site at http://www.theislecorp.com.
1
<PAGE>
Terms of the Exchange Offer
The exchange offer relates to the exchange of up to $390.0 million aggregate
principal amount of old Series A notes for an equal aggregate principal amount
of new registered Series B notes. The new notes will be obligations of Isle of
Capri and will be governed by the same indenture that governs the old notes.
New Notes................... We are offering registered 8 3/4% Senior
Subordinated Notes due 2009, Series B, for your
notes. The terms of the new notes and your old
notes are substantially identical, except:
. the new notes will be registered under the
Securities Act of 1933;
. the new notes will not bear any legends
restricting transfer; and
. except under limited circumstances, your rights
under the registration rights agreement,
including your right to receive additional
interest, will terminate.
The Exchange Offer.......... We are offering to exchange $1,000 in principal
amount of the new notes for each $1,000 in
principal amount of your old notes. As of the
date of this prospectus, $390.0 million aggregate
principal amount of the old notes is outstanding.
Expiration Date............. You have until 5:00 p.m., New York City time, on
, 1999 to validly tender your old notes if
you want to exchange your old notes for new
notes. We may extend that date under certain
conditions.
Conditions of the Exchange
Offer; Extensions;
Amendments.................
You are not required to tender any minimum
principal amount of your old notes in order to
participate in the exchange offer. If you validly
tender and do not validly withdraw your old
notes, your old notes will be exchanged for new
notes as long as the exchange offer does not
violate any applicable law or any interpretation
of applicable law by the staff of the Securities
and Exchange Commission.
We may delay or extend the exchange offer and, if
either of the above conditions is not met, we may
terminate the exchange offer. We will notify you
of any delay, extension or termination of the
exchange offer.
We may also waive any condition or amend the
terms of the exchange offer. If we materially
amend the exchange offer, we will notify you.
Interest.................... You will receive interest on the new notes from
the date interest was last paid on your old
notes. If no interest was paid on your old notes,
you will receive interest from April 23, 1999. If
your old notes are exchanged for new notes, you
will not receive any accrued interest on your old
notes.
2
<PAGE>
Procedures for Tendering
Old Notes; Special
Procedures for Beneficial
Owners.....................
If you want to participate in the exchange offer,
you must transmit a properly completed and signed
letter of transmittal, and all other documents
required by the letter of transmittal, to the
exchange agent. Please send these materials to
the exchange agent at the address set forth in
the accompanying letter of transmittal prior to
5:00 p.m., New York City time, on the expiration
date. You must also send one of the following:
. certificates of your old notes;
. a timely confirmation of book-entry transfer of
your old notes into the exchange agent's
account at The Depository Trust Company; or
. the items required by the guaranteed delivery
procedures described below.
If you are a beneficial owner of your old notes
and your old notes are registered in the name of
a nominee, such as a broker, dealer, commercial
bank or trust company, and you wish to tender
your old notes in the exchange offer, you should
instruct your nominee to promptly tender the old
notes on your behalf.
If you are a beneficial owner and you want to
tender your old notes on your own behalf, you
must, before completing and executing the letter
of transmittal and delivering your old notes,
make appropriate arrangements to either register
ownership of your old notes in your name or
obtain a properly completed bond power from the
registered holder of your old notes.
By executing the letter of transmittal, you will
represent to us that:
. you are not our "affiliate" (as defined in Rule
405 under the Securities Act of 1933);
. you will acquire the new notes in the ordinary
course of your business;
. you are not a broker-dealer that acquired your
notes directly from us in order to resell them
pursuant to Rule 144A under the Securities Act
of 1933 or any other available exemption under
the Securities Act of 1933;
. if you are a broker-dealer that acquired your
notes as a result of market-making or other
trading activities, you will deliver a
prospectus in connection with any resale of new
notes; and
. you are not participating, do not intend to
participate and have no arrangement or
understanding with any person to participate in
the distribution of the new notes.
If your old notes are not accepted for exchange
for any reason, we will return your old notes to
you at our expense.
3
<PAGE>
Guaranteed Delivery If you wish to tender your old notes and:
Procedures.................
. your old notes are not immediately available;
. you are unable to deliver on time your old
notes or any other document that you are
required to deliver to the exchange agent; or
. you cannot complete the procedures for delivery
by book-entry transfer on time;
then you may tender your old notes according to
the guaranteed delivery procedures that are
discussed in the letter of transmittal and in
"The Exchange Offer--Guaranteed Delivery
Procedures."
Acceptance of Old Notes and
Delivery of New Notes......
We will accept all old notes that you have
properly tendered on time when all conditions of
the exchange offer are satisfied or waived. The
new notes will be delivered promptly after we
accept the old notes.
Withdrawal Rights........... Tenders of old notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the
expiration date.
The Exchange Agent.......... State Street Bank and Trust Company is the
exchange agent. Its address and telephone number
are set forth in "The Exchange Offer--The
Exchange Agent; Assistance."
Fees and Expenses........... We will pay all expenses relating to the exchange
offer and compliance with the registration rights
agreement. We will also pay certain transfer
taxes, if applicable, relating to the exchange
offer.
Resales of New Notes........ We believe that the new notes may be offered for
resale, resold and otherwise transferred by you
without further compliance with the registration
and prospectus delivery requirements of the
Securities Act of 1933 if:
. you are not our "affiliate" (as defined in Rule
405 under the Securities Act of 1933);
. you acquire the new notes in the ordinary
course of your business;
. you are not a broker-dealer that purchased old
notes from us to resell them pursuant to Rule
144A under the Securities Act of 1933 or any
other available exemption under the Securities
Act of 1933; and
. you are not participating, and have no
arrangement or understanding with any person to
participate, in a distribution (within the
meaning of the Securities Act of 1933) of the
new notes.
You should read the information under the heading
"The Exchange Offer--Resales of the New Notes"
for a more complete
4
<PAGE>
description of why we believe that you can freely
transfer new notes received in the exchange offer
without registration or delivery of a prospectus.
All broker-dealers that are issued new notes for
their own accounts in exchange for old notes that
were acquired as a result of market-making or
other trading activities must acknowledge that
they will deliver a prospectus meeting the
requirements of the Securities Act of 1933 in
connection with any resale of the new notes. If
you are a broker-dealer and are required to
deliver a prospectus, you may use this prospectus
for an offer to resell, a resale or other
transfer of the new notes.
Federal Income Tax The issuance of the new notes will not constitute
Consequences............... a taxable exchange for U.S. federal income tax
purposes. You will not recognize any gain or loss
upon receipt of the new notes. See "Specific
Federal Income Tax Consequences."
Registration Rights In connection with the sale of the old notes, we
Agreement.................. entered into a registration rights agreement with
the initial purchasers of the old notes that
grants the holders of the old notes registration
rights. As a result of making and consummating
this exchange offer, we will have fulfilled most
of our obligations under the registration rights
agreement. If you do not tender your old notes in
the exchange offer, you will not have any further
registration rights under the registration rights
agreement or otherwise unless you were not
eligible to participate in the exchange offer or
do not receive freely transferrable new notes in
the exchange offer. See "The Exchange Offer--
Purpose and Effect; Registration Rights."
Consequences of Not Exchanging Old Notes
If you do not exchange your old notes for new notes in the exchange offer,
your old notes will continue to be subject to the restrictions on transfer
contained in the legend on the old notes. In general, the old notes may not be
offered or sold unless they are registered under the Securities Act of 1933.
However, you may offer or sell your old notes under an exemption from, or in a
transaction not subject to, the Securities Act of 1933 and applicable state
securities laws. We do not currently anticipate that we will register the old
notes under the Securities Act of 1933.
5
<PAGE>
Terms of the New Notes
Issuer...................... Isle of Capri Casinos, Inc.
Notes Offered............... $390,000,000 in principal amount of 8 3/4% Senior
Subordinated Notes due 2009, Series B.
Maturity.................... April 15, 2009.
Interest Payment Dates...... April 15 and October 15 of each year, commencing
October 15, 1999.
Guarantees.................. Our obligations under the new notes will be, and
our obligations under the indenture are, jointly,
severally and unconditionally guaranteed on an
unsecured senior subordinated basis by all of our
existing and future significant restricted
subsidiaries. Our restricted subsidiaries that
are not significant restricted subsidiaries and
our unrestricted subsidiaries that own and
operate our gaming facility located in Black
Hawk, Colorado will not be guarantors. See
"Description of the Notes--Subsidiary
Guarantees."
Ranking..................... The new notes will be unsecured senior
subordinated obligations and will be junior to
all of our existing and future senior debt.
The subsidiary guarantees will be unsecured
senior subordinated obligations of our
significant restricted subsidiaries and will be
junior to all existing and future senior debt of
those subsidiaries. The new notes will be
effectively junior to all debt and other
liabilities of our subsidiaries that are not
guarantors.
As of May 23, 1999, the new notes and the
guarantees:
. would have been junior to $66.0 million of our
and our restricted subsidiaries' senior debt;
and
. would have been effectively junior to $76.5
million of debt and other liabilities of our
subsidiaries that are not guarantors.
Optional Redemption......... On or after April 15, 2004, we may redeem some or
all of the new notes at any time at the
redemption prices listed in the section
"Description of the Notes--Redemption and
Repurchase Offers--Optional Redemption."
On or before April 15, 2002, we may redeem up to
35% of the new notes with the net proceeds of a
public equity offering if at least $253.5 million
aggregate principal amount of the new notes and
the old notes remains outstanding. See
"Description of the Notes--Redemption and
Repurchase Offers--Equity Proceeds Redemption."
Regulatory Redemption....... The new notes will be subject to mandatory
redemption in the event of certain determinations
by the gaming authorities in jurisdictions in
which we conduct gaming operations. See
"Description of the Notes--Redemption and
Repurchase Offers--Gaming Redemption."
6
<PAGE>
Change of Control Offer..... If we experience specific changes of control, we
must offer to repurchase the new notes at 101% of
their principal amount, plus accrued and unpaid
interest. See "Description of the Notes--
Redemption and Repurchase Offers--Change of
Control Repurchase Offer."
Certain Covenants........... The new notes will be governed by the same
indenture under which the old notes were issued.
The indenture, among other things, restricts our
ability and the ability of our restricted
subsidiaries to:
. borrow money;
. make restricted payments;
. use assets as security in other transactions;
. enter into transactions with affiliates;
. pay dividends on or repurchase our stock or our
restricted subsidiaries' stock;
. issue and sell capital stock of our
subsidiaries; and
. sell assets in excess of specified amounts or
merge with or into other companies.
Our subsidiaries that own and operate our gaming
facility located in Black Hawk, Colorado are not
subject to the covenants in the indenture. See
"Description of the Notes--Certain Covenants."
7
<PAGE>
Selected Historical Consolidated Financial Data
The following table presents our selected historical consolidated financial
data for the five fiscal years ended April 30, 1995, April 30, 1996, April 27,
1997, April 26, 1998 and April 25, 1999. This data is from our audited
consolidated financial statements and the notes to those statements. This
information should be read in conjunction with Item 7, "Management's Discussion
and Analysis of Financial Condition and Results of Operations," and the
financial statements and the related notes included in Item 8 of our Annual
Report on Form 10-K for the fiscal year ended April 25, 1999, which is
incorporated by reference into this prospectus. See "Incorporation of
Information Isle of Capri Files with the SEC."
<TABLE>
<CAPTION>
Fiscal Year Ended
-------------------------------------------------
April 30, April 30, April 27, April 26, April 25,
1995(1) 1996(1) 1997(1) 1998 1999
--------- --------- --------- --------- ---------
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Revenue:
Casino...................... $117.6 $123.9 $322.7 $388.2 $424.4
Pari-mutuel commissions and
fees....................... -- 15.1 19.4 22.6 21.4
Rooms, food, beverage and
other...................... 9.9 19.0 31.3 30.0 34.6
------ ------ ------ ------ ------
Total revenue.............. 127.5 158.0 373.4 440.8 480.4
Operating expenses:
Gaming taxes................ 13.9 15.1 61.8 78.6 86.9
Casino, rooms, food,
beverage and other......... 84.1 115.3 246.5 267.5 284.3
Valuation charge(2)......... -- 9.3 7.0 -- 5.1
Restructuring charge(3)..... -- 2.5 -- -- --
Accrued litigation
settlement (reversal)(4)... -- -- -- -- (4.2)
Preopening expenses(5)...... 0.5 1.3 2.5 -- 3.3
Depreciation and
amortization............... 8.9 12.1 27.1 33.6 36.3
------ ------ ------ ------ ------
Total operating expenses... 107.4 155.6 344.9 379.7 411.7
------ ------ ------ ------ ------
Operating income............. 20.1 2.4 28.5 61.1 68.7
Interest expense............. (14.0) (15.3) (40.3) (51.6) (48.6)
Interest income.............. 4.0 1.4 1.6 4.7 2.9
Minority interest............ -- -- -- 0.8 2.2
Equity in income (loss) of
unconsolidated joint
ventures(6)................. 19.9 16.4 (0.2) -- (1.3)
------ ------ ------ ------ ------
Income (loss) before income
taxes and extraordinary
item........................ 30.0 4.9 (10.4) 15.0 23.9
Income tax provision
(benefit)................... 11.9 3.3 (1.6) 7.5 11.8
------ ------ ------ ------ ------
Net income (loss) before
extraordinary item.......... 18.1 1.6 (8.8) 7.5 12.1
Extraordinary loss on
extinguishment of debt, net
of applicable tax benefit... -- -- (12.3) -- (36.3)
------ ------ ------ ------ ------
Net income (loss)............ $ 18.1 $ 1.6 $(21.1) $ 7.5 $(24.2)
====== ====== ====== ====== ======
Balance Sheet Data and Other
Data:
Cash and cash equivalents.... $ 19.0 $ 18.6 $ 51.8 $ 52.5 $ 85.1
Total assets................. 211.9 226.5 528.4 615.7 676.5
Long-term debt, including
current portion............. 138.9 139.8 379.5 442.1 532.8
Stockholders' equity......... 42.0 50.3 78.0 86.1 62.0
Ratio of earnings to fixed
charges(7).................. 1.7x -- -- 1.2x 1.3x
</TABLE>
Footnotes on following page
8
<PAGE>
- --------
(1) The operating results for fiscal years prior to fiscal 1998 are not
comparable to other periods presented because the Isle-Bossier City and the
Isle-Lake Charles were accounted for under the equity method until August
6, 1996, when the remaining interests in these facilities were acquired by
us. In addition, fiscal periods prior to 1996 do not include the operating
results of one of the two Lake Charles riverboats, as it was acquired in
May 1996.
(2) The valuation charge of $9.3 million in fiscal 1996 and $7.0 million in
fiscal 1997 related to the write-down of two riverboats, a barge and
certain gaming equipment, all of which were classified as held for sale.
The valuation charge of $5.1 million for the fiscal year ended April 25,
1999 includes (a) $2.4 million for the write-down of two original riverboat
casino vessels and land that we were planning to develop in Cripple Creek,
Colorado and (b) $2.7 million for future obligation under an operating
lease related to land leased by us in Cripple Creek, Colorado.
(3) The restructuring charge of $2.5 million in fiscal 1996 includes (a) $2.0
million related to costs associated with a change in executive management
and (b) $0.5 million related to costs associated with certain abandoned
projects.
(4) The reversal of an accrued litigation settlement of $4.2 million for the
fiscal year ended April 25, 1999 related to an accrued boarding tax
liability at the Isle-Bossier City for which it was determined that the
Isle-Bossier City was not liable.
(5) Preopening expenses of $0.5 million in fiscal 1995 related to costs
incurred in connection with the opening of the new floating pavilion at the
Isle-Vicksburg. Preopening expenses of $1.3 million in fiscal 1996 related
to costs incurred in connection with the opening of the hotel at the Isle-
Biloxi. Preopening expenses of $2.5 million in fiscal 1997 related to costs
incurred in connection with the opening of the Grand Palais riverboat in
Lake Charles. Preopening expenses of $3.3 million in fiscal 1999 related to
costs incurred in connection with the opening of the Isle-Black Hawk on
December 30, 1998.
(6) The equity in income (loss) of unconsolidated joint ventures represents the
unconsolidated operations of the Isle-Bossier City for fiscal 1995, 1996
and 1997 and the Isle-Lake Charles for fiscal 1996 and 1997. The equity in
income (loss) of unconsolidated joint ventures represents the loss from our
50% ownership interest in Capri Cruises for fiscal 1999.
(7) For purposes of determining the ratio of earnings to fixed charges,
earnings consist of earnings before provision for income taxes plus fixed
charges, excluding capitalized interest. Fixed charges consist of interest
on indebtedness, including capitalized interest, plus that portion of
rental expense that is considered to be interest. This ratio does not
include earnings and fixed charges of unconsolidated joint ventures.
Earnings were inadequate to cover fixed charges by $13.0 million for fiscal
1996 and $10.2 million for fiscal 1997.
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<PAGE>
RISK FACTORS
You should consider carefully the risk factors below as well as the other
information in this prospectus before tendering your old notes in the exchange
offer.
You May Not Be Able to Sell Your Old Notes if You Do Not Exchange Them for
Registered Notes in the Exchange Offer
If you do not exchange your old notes for new notes in the exchange offer,
your old notes will continue to be subject to the restrictions on transfer as
stated in the legend on the old notes. In general, you may not offer or sell
the old notes unless they are:
. registered under the Securities Act of 1933;
. offered or sold pursuant to an exemption from the Securities Act of 1933
and applicable state securities laws; or
. offered or sold in a transaction not subject to the Securities Act of
1933 and applicable state securities laws.
We do not currently anticipate that we will register the old notes under the
Securities Act of 1933. In addition, holders who do not tender their old notes,
except for certain instances involving the initial purchasers or holders of old
notes who are not eligible to participate in the exchange offer or who do not
receive freely transferrable new notes pursuant to the exchange offer, will not
have any further registration rights under the registration rights agreement or
otherwise and will not have rights to receive additional interest.
The Market for Old Notes May Be Significantly More Limited after the Exchange
Offer
If old notes are tendered and accepted for exchange pursuant to the exchange
offer, the trading market for old notes that remain outstanding may be
significantly more limited. As a result, the liquidity of the old notes not
tendered for exchange may be adversely affected. The extent of the market for
old notes and the availability of price quotations would depend upon a number
of factors, including the number of holders of old notes remaining outstanding
and the interest of securities firms in maintaining a market in the old notes.
An issue of securities with a similar outstanding market value available for
trading, which is called the "float," may command a lower price than would be
comparable to an issue of securities with a greater float. As a result, the
market price for old notes that are not exchanged in the exchange offer may be
affected adversely as old notes exchanged pursuant to the exchange offer reduce
the float. The reduced float also may make the trading price of the old notes
that are not exchanged more volatile.
We Have a Significant Amount of Debt
We have a significant amount of debt. The new notes will be junior to all of
our existing and future senior debt, including any amounts we borrow under our
senior credit facility and under our other lines of credit. As of May 23, 1999,
the restricted group had $456.0 million of total debt outstanding, which
excludes $76.5 million of debt of our non-guarantor subsidiaries that is non-
recourse to us. We and our subsidiaries may incur substantial additional debt
in the future. The terms of the indenture and our senior credit facility do not
prohibit us or our subsidiaries from doing so. All borrowings under our credit
facilities will be senior to the notes and the subsidiary guarantees.
Our ability to make scheduled payments of principal and interest on and
refinance our debt, including the new notes, and fund planned expansions and
project developments depends on our future cash flow. We do not have complete
control over our future performance since it is subject to economic, financial,
competitive, regulatory and other factors affecting our operations and the
gaming industry generally. We may not generate sufficient cash flow from
operations to service our debt and to make planned capital expenditures. If
this occurs, we may have to alter, delay or abandon our expansion projects,
sell assets, restructure debt or issue
10
<PAGE>
more stock. We may not be able to do any of these things or may incur
significant expenses in doing them. Because we have a significant amount of
debt outstanding, we may not be able to obtain other financing to complete our
expansion projects, make capital expenditures, pursue new opportunities,
identify new markets, make acquisitions or respond to competition or changes in
our business. If new debt is added to our and our subsidiaries' current debt
levels, the related risks that we and they now face could increase.
The New Notes and Guarantees Are Junior to Senior Debt and Effectively Junior
to Debt and Other Liabilities of Our Non-Guarantor Subsidiaries
The new notes will be junior to all of our existing and future senior debt,
including any amounts we borrow under our senior credit facility or our other
lines of credit. We must use our operating cash to pay amounts due under debt
that ranks senior to the new notes before we can use operating cash to make
interest or principal payments on the new notes.
The subsidiary guarantees are junior to all existing and future senior debt
of the subsidiary guarantors. All subsidiaries that guarantee the new notes
also guarantee our senior credit facility. The subsidiary guarantors must use
their operating cash to pay amounts due under debt that ranks senior to the
guarantees before they can use their operating cash to make payments with
respect to the guarantees.
As of May 23, 1999, we and our significant restricted subsidiaries had
approximately $66.0 million of senior debt outstanding. Since some of our
subsidiaries will not guarantee the new notes, the new notes will be
effectively junior to all debt and other liabilities of these non-guarantor
subsidiaries. In the event of a bankruptcy, liquidation, reorganization or
similar proceeding relating to any of our non-guarantor subsidiaries, holders
of their debt and their trade creditors will generally be entitled to payment
of their claims from the assets of those subsidiaries before any assets are
made available for distribution to our creditors. As of May 23, 1999, the new
notes would have been effectively junior to approximately $76.5 million of debt
and other liabilities of our non-guarantor subsidiaries.
If there is a distribution to our creditors because of a bankruptcy,
liquidation, reorganization or similar proceeding relating to us or our
property, holders of debt that is senior to the new notes will be paid in full
before any payment may be made with respect to the new notes. Similarly, in the
event of a bankruptcy, liquidation, reorganization or similar proceeding
relating to any subsidiary guarantor, its assets would be available to pay
obligations under its guarantee only after all senior debt of that guarantor is
paid in full.
We are a holding company. Our subsidiaries conduct substantially all of our
operations and own substantially all of our assets. Our cash flow and our
ability to meet our debt service obligations depend upon the cash flow of our
subsidiaries and the payment of funds by our subsidiaries to us in the form of
management fees, loans and dividends. Our subsidiaries are not obligated to
make funds available to us for payment on the new notes. In addition, the
ability of our subsidiaries to make payments to us will depend on their
earnings, the terms of their debt, business and tax considerations and legal
restrictions.
The New Notes Are Unsecured--Your Right to Enforce Remedies is Limited by the
Rights of Holders of Secured Debt
The new notes will not be secured by any of our assets or any assets of our
subsidiaries. Our obligations under our senior credit facility are secured by
substantially all of our assets and the assets of our subsidiaries other than
our subsidiaries that own and operate our gaming facility located in Black
Hawk, Colorado. If we become insolvent or are liquidated, or if payment under
our senior credit facility is accelerated, the lenders under our senior credit
facility will be entitled to exercise the remedies available to a secured
lender under applicable law. These lenders will have a claim on our assets and
the assets of our subsidiaries before the holders of the new notes.
We Face Significant Competition from Other Gaming Operations
We face intense competition in each of the markets in which we operate. Our
existing gaming facilities compete directly with other gaming properties in
Louisiana, Mississippi and Colorado. We expect this
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<PAGE>
competition to increase as new gaming operators enter our markets, existing
competitors expand their operations, gaming activities expand in existing
jurisdictions and gaming is legalized in new jurisdictions. Several of our
competitors have substantially better name recognition, marketing and financial
resources than we do. We cannot predict with any certainty the effects of
existing and future competition on our operating results.
The last available gaming license in Louisiana could be awarded to an
operator in either the Lake Charles or Bossier City/Shreveport market. The
Chairman of the Louisiana Gaming Control Board has indicated that he will ask
the Louisiana Gaming Control Board to consider accepting applications for this
license. If the Louisiana Gaming Control Board begins accepting applications
for this license, the license likely will be awarded before the first half of
calendar 2000. Existing licenses could also be relocated to either of these
markets. There is no limit on the number of gaming licenses granted in
Mississippi. As a result, new licenses could be awarded to gaming facilities in
any Mississippi market in which we operate. An increase in the number of gaming
facilities in any market in which we operate could have an adverse effect on
our operating results.
Our existing casinos attract a significant number of their customers from
Houston and Dallas/Fort Worth, Texas; Mobile, Alabama; Jackson, Mississippi and
Denver, Colorado. The casinos we plan to open in Tunica County and Coahoma
County, Mississippi will attract a significant number of their customers from
the Memphis, Tennessee and Little Rock, Arkansas areas. Our continued success
depends upon drawing customers from each of these geographic markets.
Legalization of gaming in jurisdictions closer to these geographic markets than
the jurisdictions in which our facilities are located would have a material
adverse effect on our operating results.
We also compete with other forms of gaming and entertainment, such as online
computer gambling, bingo, pull tab games, card parlors, sports books, pari-
mutuel or telephonic betting on horse racing and dog racing, state-sponsored
lotteries, jai-alai, video lottery terminals, video poker terminals and, in the
future, may compete with in-flight gaming or gaming at other venues.
Legislation was adopted in Louisiana in 1997, and approved by voters in Bossier
Parish, Louisiana, that, subject to passage of legislation assessing a tax,
would allow up to 15,000 square feet of slot machines to be located at
Louisiana Downs, which is located approximately six miles east of our Bossier
City, Louisiana casino. In the 1998 legislative session, the legislature failed
to enact legislation assessing a tax. However, the 1999 legislature passed a
bill that eliminated the need to assess a state tax prior to commencement of
slot operations by creating a local tax district. Therefore, slot operations
may commence shortly at Louisiana Downs, which could have an adverse effect on
our Bossier City, Louisiana casino.
We also compete with gaming operations in other gaming jurisdictions, such
as Las Vegas, Nevada and Atlantic City, New Jersey. Our competition also
includes casinos located on Native American reservations throughout the United
States, which have the advantages of being land-based and exempt from certain
state and federal taxes. Some Native American tribes are either in the process
of establishing or are considering the establishment of gaming at additional
locations. Expansion of existing gaming jurisdictions and the development of
new gaming jurisdictions and casinos on Native American-owned lands will
increase competition for our existing and future operations. In addition,
increased competition could limit new opportunities for us or result in the
saturation of certain gaming markets.
Our Senior Credit Facility and the Indenture Governing the Notes Restrict Our
Operations
We have made and will need to make significant capital expenditures to our
existing facilities to remain competitive with current and future competitors
in our markets. Our senior credit facility and the indenture that governs the
old notes, and will govern the new notes, contain operating and financial
restrictions that may limit our ability to obtain the financing to make these
capital expenditures.
Our senior credit facility, among other things, limits our ability to borrow
money, make capital expenditures, use assets as security in other transactions,
make restricted payments or restricted investments,
12
<PAGE>
incur contingent obligations, sell assets and enter into leases and
transactions with affiliates. In addition, our senior credit facility requires
us to meet financial ratios and tests, including:
. a minimum consolidated net worth test;
. a maximum consolidated total leverage test;
. a maximum consolidated senior leverage test; and
. a minimum consolidated fixed charge coverage test.
The indenture that governs the old notes, and will govern the new notes,
imposes operating and financial restrictions on us that limit our ability to:
. borrow money;
. make restricted payments;
. use assets as security in other transactions;
. enter into transactions with affiliates;
. pay dividends on or purchase our stock or our significant restricted
subsidiaries' stock;
. issue and sell stock of significant restricted subsidiaries; and
. sell assets in excess of specified amounts or merge with or into other
companies.
A breach of any restriction or covenant contained in our senior credit
facility or the indenture could cause a default under the new notes and other
debt and result in a significant portion of our debt becoming immediately due
and payable. We are not certain whether we would have, or would be able to
obtain, sufficient funds to make these accelerated payments, including payments
on the new notes. In addition, following the occurrence of certain events of
default under our senior credit facility, we may be prohibited from making
payments on the new notes. For more information regarding the restrictions
contained in the indenture, see "Description of the Notes--Certain Covenants."
We Are Subject to Changes in Gaming Regulations and Legislation
Licensing Requirements. As owners and operators of gaming facilities, we are
subject to extensive state and local regulation. State and local authorities
require us and our subsidiaries to demonstrate suitability to obtain and retain
various licenses and require that we have registrations, permits and approvals
to conduct gaming operations. Various regulatory authorities, including the
Louisiana Gaming Control Board, the Mississippi Gaming Commission and the
Colorado Limited Gaming Control Commission, may, for any reasonable cause,
limit, condition, suspend or revoke a license to conduct gaming operations or
prevent us from owning the securities of any of our gaming subsidiaries. Like
all gaming operators in the jurisdictions in which we operate, we must
periodically apply to renew our gaming licenses. We cannot assure you that we
will be able to obtain such renewals. Regulatory authorities may also levy
substantial fines against or seize the assets of our company, our subsidiaries
or the people involved in violating gaming laws or regulations. Any of these
events could have a material adverse effect on our business.
We have demonstrated suitability to obtain and have obtained all
governmental licenses, registrations, permits and approvals necessary for us to
operate our existing gaming facilities. We cannot assure you that we will be
able to retain them or demonstrate suitability to obtain any new licenses,
registrations, permits or approvals. If we expand our gaming operations in
Louisiana, Mississippi or Colorado or to new areas, we will have to meet
suitability requirements and obtain additional licenses, registrations, permits
and approvals from gaming authorities in these jurisdictions. The approval
process can be time-consuming and costly and there is no assurance that we will
be successful.
Gaming authorities can generally require that any beneficial owner of our
securities, including holders of the new notes, file an application for a
finding of suitability. If a gaming authority requires a record or
13
<PAGE>
beneficial owner of a new note to file a suitability application, the owner
must apply for a finding of suitability within 30 days or at an earlier time
prescribed by the gaming authority. The gaming authority has the power to
investigate an owner's suitability and the owner must pay all costs of the
investigation. If the owner is found unsuitable, then the owner may be
required, either by law or the terms of the new notes, to dispose of the new
notes. See "Description of the Notes--Redemption and Repurchase Offers--Gaming
Redemption."
Other Regulatory Restrictions. The Louisiana Gaming Control Board and the
Mississippi Gaming Commission must approve, in advance, any restrictions on,
transfers of, agreements not to encumber or pledges of equity securities that
are issued by a corporation that is registered as an intermediary company with,
or holds a gaming license issued by, the Louisiana Gaming Control Board or the
Mississippi Gaming Commission. If these restrictions are not approved in
advance, they will be invalid.
Potential Changes in Regulatory Environment. From time to time, legislators
and special interest groups have proposed legislation that would expand,
restrict or prevent gaming operations in the jurisdictions in which we operate.
For example, during 1998, certain anti-gaming groups proposed referenda that,
if adopted, would have banned gaming in Mississippi and required that gaming
entities cease operations within two years after the ban. The referenda were
declared illegal by Mississippi courts on constitutional and procedural
grounds. Any expansion of gaming or restriction on or prohibition of our gaming
operations could have a material adverse effect on our operating results.
National Gambling Impact Study Commission. The U.S. Congress has established
a National Gambling Impact Study Commission to comprehensively study the social
and economic impact of gambling in the United States. In June 1999, the
National Gambling Impact Study Commission issued a report containing its
findings and conclusions, together with recommendations for legislation and
administrative actions at the national, state, local and tribal levels. These
recommendations could result in new laws and/or new regulations that could
adversely affect our business and the gaming industry in general.
Taxes. From time to time, legislators have proposed a federal tax on gross
gaming revenues. This tax could have a material adverse effect on our business,
financial condition and results of operations.
We May Experience Difficulty in Expanding Our Operations
We plan to grow through expanding our existing facilities, developing new
properties and making strategic acquisitions. This strategy depends, among
other things, on our ability to:
. identify suitable locations and acquisition candidates;
. successfully compete for and obtain state and local licenses;
. successfully lobby for changes in existing laws or new laws;
. defeat referenda to ban, restrict or prohibit gaming; and
. obtain financing.
We may incur significant costs on projects that never materialize. Our
strategy may divert resources from existing operations, which may adversely
affect our operating results. In addition, we may experience difficulties in
integrating new properties we develop or acquire into our existing operations.
Regulatory or financial constraints and a number of other factors could
intervene, alter, delay or cause us to abandon our expansion plans. We will
need to attract additional employees to manage new projects. There is no
assurance that we will be successful in doing so. Failure to manage our growth
effectively and attract additional employees could materially adversely affect
our operating results.
Construction Risks Could Delay Our Growth
We have several projects under construction and have further development
plans. We believe that the construction and development of hotel facilities and
other capital improvement projects are important to the
14
<PAGE>
continued success of our existing locations and that development of new
facilities on a strategic basis is critical to our growth. Some of our existing
development plans are in the preliminary stages and are subject to further
refinement, which may cause our plans and the budgets related to our plans to
change materially. We face a number of risks when we undertake a construction
project, which may require us to substantially change our proposed plans or
alter initial time frames or budgets, possibly materially, and could affect our
ability to complete planned and future expansion and improvement projects,
including:
. potential shortages of materials and skilled labor, work stoppages or
labor disputes;
. problems with construction, equipment or staffing requirements;
. weather interference;
. unforeseen engineering, environmental or geological problems;
. difficulty in obtaining any of the necessary licenses, permits,
allocations or authorizations from regulatory authorities;
. difficulty in entering into leases and other agreements with third
parties; and
. unanticipated cost increases.
It is also possible that construction at existing operations could affect
our operating results by discouraging customers from visiting our facilities.
Weather and Other Conditions Could Seriously Disrupt Our Operations
Dockside and riverboat facilities in Louisiana and Mississippi are subject
to unique risks, including loss of service because of casualty, mechanical
failure, extended or extraordinary maintenance, flood, hurricane or other
severe weather. Cruising riverboats face additional risks from the movement of
vessels on waterways.
Areas along the Mississippi Gulf Coast, the Mississippi River, the Red River
and the Calcasieu River are subject to storms, hurricanes and flooding. In
September 1998, we shut down our gaming facility located in Biloxi, Mississippi
for almost one week when Hurricane Georges struck the Mississippi Gulf Coast
region. Our Biloxi property did not sustain any significant damage. We maintain
limited business interruption insurance, but the proceeds from any claim may be
insufficient to compensate us if one or more of our casinos can no longer
operate. Our loss of a dockside or riverboat casino from service for any period
of time could adversely affect our operating results.
A number of our facilities may be affected by road conditions, such as
construction and traffic. For example, planned construction on Interstate 10,
the primary route traveled by customers frequenting our Lake Charles, Louisiana
casino, may affect our operating results. In addition, severe weather, such as
high winds and blizzards, occasionally limits access to our Black Hawk,
Colorado casino.
We Depend on Our Management and Employees
We depend on the efforts and skills of a few key executive officers and the
experience of our property managers. The loss of any of them could adversely
affect our business. We do not maintain "key man" life insurance on any of our
employees. There is no assurance that we would be able to attract and hire
suitable replacements for any of our key employees. We need qualified
executives, managers and skilled employees with gaming industry experience to
continue to successfully operate our business. We believe there is a shortage
of skilled labor in the gaming industry. As a result, we may have difficulty
and incur significant expenses in attracting and retaining qualified employees.
We expect that increased competition in the gaming industry will intensify this
problem.
We Are Subject to Non-Gaming Regulation
The riverboats operated by our Lake Charles and Bossier City, Louisiana
gaming facilities must comply with U.S. Coast Guard requirements as to boat
design, on-board facilities, equipment, personnel and safety and
15
<PAGE>
must hold U.S. Coast Guard Certificates of Documentation and Inspection. The
U.S. Coast Guard requirements also set limits on the operation of the
riverboats and require licensing of certain personnel involved with the
operation of the riverboats. Loss of a riverboat's Certificate of Documentation
and Inspection could preclude its use as a riverboat casino. Each of our
riverboats is inspected annually and, every five years, is subject to
drydocking for inspection of its hull, which could result in a temporary loss
of service.
Permanently moored vessels such as our Biloxi and Vicksburg, Mississippi
casino barges are not required to hold Certificates of Documentation and
Inspection from the U.S. Coast Guard. However, the Mississippi Gaming
Commission has engaged third parties to inspect and certify all casino barges
for stability and single compartment flooding integrity. Our casino barges in
Mississippi must be inspected every two years. Our casino barges in Mississippi
must also meet the fire safety standards of the Mississippi Fire Prevention
Code and the Life Safety Code and the Standards for the Construction and Fire
Protection of Marine Terminals, Piers and Wharfs of the National Fire
Protection Association. We would incur additional costs if either of our
Mississippi gaming facilities were not in compliance with one or more of these
requirements.
We are also subject to certain federal, state and local environmental laws,
regulations and ordinances that apply to non-gaming businesses generally, such
as the Clean Air Act, the Clean Water Act, the Resource Conservation Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act
and the Oil Pollution Act of 1990. Under various federal, state and local laws
and regulations, an owner or operator of real property may be held liable for
the costs of removal or remediation of certain hazardous or toxic substances or
wastes located on its property, regardless of whether or not the present owner
or operator knows of, or is responsible for, the presence of such substances or
wastes. We have not identified any issues associated with our properties that
could reasonably be expected to have an adverse effect on us or the results of
our operations. However, certain of our properties are located in industrial
areas or were used for industrial purposes for many years. As a consequence, it
is possible that historical or neighboring activities have affected one or more
of our properties and that, as a result, environmental issues could arise in
the future, the precise nature of which we cannot now predict. The coverage and
attendant compliance costs associated with these laws, regulations and
ordinances may result in future additional costs.
Regulations adopted by the Financial Crimes Enforcement Network of the U.S.
Treasury Department require us to report currency transactions in excess of
$10,000 occurring within a gaming day, including identification of the patron
by name and social security number. Substantial penalties can be imposed
against us if we fail to comply with these regulations.
The Guarantees May Be Unenforceable due to Fraudulent Conveyance Statutes
The obligations of the subsidiary guarantors may be subject to challenge
under state or federal fraudulent transfer laws. In general, under fraudulent
conveyance laws, a court can subordinate or avoid an obligation such as a
guarantee if it determines that the obligation was incurred with actual intent
to hinder, delay or defraud creditors or if the guarantor did not receive fair
consideration or reasonably equivalent value for the guarantee and:
. was insolvent or rendered insolvent as a result of the guarantee;
. was engaged in a business or transaction for which the guarantor's
remaining assets constituted unreasonably small capital; or
. intended to incur, or believed that it would incur, debts beyond its
ability to pay at maturity.
Generally, an entity is insolvent if:
. the sum of its debts, including contingent or unliquidated debts, is
greater than all of its property at a fair valuation; or
. the present fair salable value of its assets is less than the amount
required to pay its probable liability on existing debts as they become
due.
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We May Not Be Able to Repurchase Notes upon a Change of Control Offer
If specific change of control events occur, we must offer to repurchase all
outstanding old notes and new notes. Our senior credit facility prohibits us
from doing so until we have repaid the outstanding principal balance, accrued
interest and other amounts owed under the senior credit facility. Future
agreements may contain similar provisions. Restrictions in our senior credit
facility or the indenture that governs the old notes, and will govern the new
notes, may also prevent us from borrowing funds for the repurchase. In that
event, we could refinance our outstanding debt or obtain consents under
existing agreements. We may not be able to do so or may not be able to
negotiate favorable refinancing terms. If we cannot refinance our debt or do
not obtain the necessary consents, we will not be able to repurchase the old
notes or the new notes. Our failure to repurchase notes tendered upon a change
of control would cause us to default on the indenture, our senior credit
facility and other senior debt. In the event of a default, the indenture would
likely restrict payment to noteholders. See "Description of the Notes--
Redemption and Repurchase Offers."
We Experience Quarterly Fluctuations in Operating Results
Our quarterly operating results fluctuate because of seasonality and other
factors. We typically generate the majority of our income in our first and
fourth fiscal quarters, which end in July and April, respectively.
Our Year 2000 Compliance Efforts May Require Substantial Resources; Failure by
Us or Certain Third Parties to Be Year 2000 Compliant Poses Risks
Our business operations depend on our and our suppliers' Year 2000
readiness. We have completed an evaluation of our information technology
infrastructure for Year 2000 issues and have determined that most of this
infrastructure is Year 2000 compliant. We are changing to a casino player
tracking and table system that is Year 2000 compliant. We have also made
detailed inquiries as to the Year 2000 capability of our computer hardware and
software vendors and have received reasonable assurances from these vendors
that the material products we use are Year 2000 compliant.
We have not and do not expect to incur any material costs to become Year
2000 compliant. However, we may still be affected by Year 2000 difficulties.
For example, our results of operations and financial condition could be
materially adversely affected by a failure of a supplier or vendor to address
and resolve its Year 2000 issues. In addition, any Year 2000 difficulties
experienced by public utilities, the banking system, the postal system or other
similar infrastructure enterprises could adversely affect our operations. We do
not have a contingency plan in place in the event we are affected by Year 2000
difficulties.
ISLE OF CAPRI CASINOS, INC.
We are a leading developer, owner and operator of branded gaming and related
lodging and entertainment facilities in growing markets in the United States.
We wholly own and operate four gaming facilities located in Lake Charles and
Bossier City, Louisiana and Biloxi and Vicksburg, Mississippi. We also own a
57% interest in and operate a gaming facility in Black Hawk, Colorado, which
opened on December 30, 1998. Each of these five gaming facilities operates
under the name "Isle of Capri" and features our distinctive tropical island
theme. In addition, we wholly own and operate a pari-mutuel harness racing
facility in Pompano Beach, Florida and own a 50% interest in and operate gaming
activities aboard a cruise ship based in New Orleans, Louisiana.
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In consideration
for issuing the new notes, we will receive outstanding old notes in like
original principal amount at maturity. All old notes received in the exchange
offer will be canceled.
17
<PAGE>
THE EXCHANGE OFFER
Purpose and Effect; Registration Rights
We sold the old notes to the initial purchasers on April 23, 1999. The
initial purchasers then resold the old notes under an offering memorandum dated
April 20, 1999 in reliance on Rule 144A, Regulation S and other available
exemptions under the Securities Act of 1933. On April 23, 1999, we entered into
a registration rights agreement with the initial purchasers. Under the
registration rights agreement, we agreed to:
. file a registration statement with the Securities and Exchange Commission
relating to the exchange offer under the Securities Act of 1933 no later
than July 7, 1999;
. use our best efforts to cause the exchange offer registration statement
to be declared effective under the Securities Act of 1933 on or before
August 21, 1999;
. commence the exchange offer promptly after the exchange offer
registration statement is declared effective by the Securities and
Exchange Commission;
. keep the exchange offer open for acceptance for at least 20 business days
after notice of the exchange offer is mailed to holders of the old notes;
. cause the exchange offer to be consummated not later than 30 business
days following the date of the effectiveness of the exchange offer
registration statement;
. use our best efforts to promptly issue new notes in exchange for all old
notes that have been properly tendered for exchange prior to the
expiration of the exchange offer; and
. use our best efforts to keep the exchange offer registration statement
effective until the closing of the exchange offer and thereafter until we
have issued new notes in exchange for all old notes that have been
properly tendered for exchange prior to the expiration of the exchange
offer.
In the registration rights agreement, we agreed to file a shelf registration
statement if:
. we are not permitted to effect the exchange offer under applicable law or
applicable interpretations of law by the Securities and Exchange
Commission staff;
. for any reason, the exchange offer is not consummated by September 20,
1999;
. any holder of old notes notifies us that it (1) is not entitled to
participate in the exchange offer, (2) may not resell the new notes
required by it in the exchange offer to the public without delivering a
prospectus and this prospectus is not appropriate or available for
purposes of these resales or (3) is a broker-dealer and owns old notes
acquired directly from us or one of our affiliates; or
. the holders of a majority in aggregate principal amount of the old notes
are not eligible to participate in the exchange offer and to receive new
notes that they may resell to the public without volume restriction under
the Securities Act of 1933 and without similar restriction under
applicable blue sky or state securities laws.
If we are required to file a shelf registration statement, we must use our
best efforts to file the shelf registration statement relating to the old notes
on or before the 60th day after the obligation to file the shelf registration
statement arises. However, if our obligation arises because this exchange offer
has not been consummated by September 20, 1999, we must use our best efforts to
file the shelf registration statement by October 21, 1999. We will use our best
efforts to cause the shelf registration statement to be declared effective no
later than 120 days after the date that the obligation to file the shelf
registration statement arises.
If the shelf registration statement is filed, we will use our best efforts
to keep the shelf registration statement continuously effective, supplemented
and amended until the second anniversary of the effective date of the shelf
registration statement or a shorter period that will terminate when all the
notes covered by the shelf registration statement have been sold pursuant to
the shelf registration statement or otherwise cease to be outstanding.
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<PAGE>
A holder who sells old notes pursuant to the shelf registration statement
generally will be required to be named as a selling securityholder in the
prospectus and to deliver a copy of the prospectus to purchasers. If we are
required to file a shelf registration statement, we will provide to each holder
of the old notes copies of the prospectus that is a part of the shelf
registration statement and notify each such holder when the shelf registration
statement becomes effective. Such holder will be subject to some of the civil
liability provisions under the Securities Act of 1933 in connection with these
sales and will be bound by the provisions of the registration rights agreement
that are applicable to such holder (including certain indemnification and
contribution obligations).
The registration rights agreement requires us to pay the holders of the
notes additional interest if a registration default exists. A registration
default will exist if:
. we fail to file any of the registration statements required by the
registration rights agreement on or prior to the date specified for such
filing;
. any of such registration statements is not declared effective by the
Securities and Exchange Commission on or prior to the date specified for
such effectiveness;
. the exchange offer is required to be consummated under the registration
rights agreement and is not consummated by September 20, 1999;
. the shelf registration statement is declared effective but thereafter,
during the period for which we are required to maintain the effectiveness
of the shelf registration statement, it ceases to be effective or usable
in connection with the resale of the new notes covered by the shelf
registration statement; or
. the exchange offer registration statement is declared effective but
thereafter, during the period for which we have agreed to make this
prospectus available to broker-dealers for use in connection with the
resale of new notes, the exchange offer registration statement ceases to
be effective (or we restrict the use of the prospectus included in the
exchange offer registration statement).
If a registration default exists, the interest rate of the old notes will be
increased by 0.25% per year for the first 90-day period following the
registration default. The interest rate will increase by an additional 0.25%
per year at the beginning of each subsequent 90-day period (or portion thereof)
until all registration defaults have been remedied. The interest rate may not
be increased as a result of registration defaults by more than 1.00% per year.
Following the cure of all registration defaults, the accrual of additional
interest on the old notes will cease and the interest rate will revert to the
original rate.
The exchange offer is intended to satisfy our exchange offer obligations
under the registration rights agreement. The above summary of the registration
rights agreements is not complete and is subject to, and qualified by reference
to, all of the provisions of the registration rights agreement. A copy of the
registration rights agreement is filed as an exhibit to the registration
statement that includes this prospectus.
If you participate in the exchange offer, you will, with limited exceptions,
receive notes that are freely tradeable and not subject to restrictions on
transfer. You should read this prospectus under the heading "--Resales of the
New Notes" for more information relating to your ability to transfer new notes.
The exchange offer is not being made to, nor will we accept tenders for
exchange from, holders of old notes in any jurisdiction in which the exchange
offer or the acceptance of the exchange offer would not be in compliance with
the securities laws or blue sky laws of such jurisdiction.
Expiration Date; Extensions
The expiration date at the exchange offer is , 1999 at 5:00 p.m., New
York City time. We may extend the exchange offer in our sole discretion. If we
extend the exchange offer, the expiration date will be the latest date and time
to which the exchange offer is extended. We will notify the exchange agent of
any extension by oral or written notice and will make a public announcement of
the extension no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled expiration date.
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<PAGE>
We expressly reserve the right, in our sole and absolute discretion:
. to delay accepting any old notes;
. to extend the exchange offer;
. if any of the conditions under "--Conditions of the Exchange Offer" have
not been satisfied, to terminate the exchange offer; and
. to waive any condition or otherwise amend the terms of the exchange offer
in any manner.
If the exchange offer is amended in a manner we deem to constitute a
material change, we will promptly disclose the amendment by means of a
prospectus supplement that will be distributed to the registered holders of the
old notes. Any delay in acceptance, extension, termination or amendment will be
followed promptly by an oral or written notice of the event to the exchange
agent. We will also make a public announcement of the event. Without limiting
the manner in which we may choose to make any pubic announcement and subject to
applicable law, we have no obligation to publish, advertise or otherwise
communicate any such pubic announcement other than by issuing a release to a
national news service.
Terms of the Exchange Offer
We are offering, upon the terms and subject to the conditions set forth in
this prospectus and in the accompanying letter of transmittal, to exchange
$1,000 in principal amount of new notes for each $1,000 in principal amount of
outstanding old notes. We will accept for exchange any and all old notes that
are validly tendered on or before 5:00 p.m., New York City time, on the
expiration date. Tenders of the old notes may be withdrawn at any time before
5:00 p.m., New York City time, on the expiration date. The exchange offer is
not conditioned upon any minimum principal amount of old notes being tendered
for exchange. However, the exchange offer is subject to the terms of the
registration rights agreement and the satisfaction of the conditions described
under "--Conditions of the Exchange Offer." Old notes may be tendered only in
multiples of $1,000. Holders may tender less than the aggregate principal
amount represented by their old notes if they appropriately indicate this fact
on the letter of transmittal accompanying the tendered old notes or indicate
this fact pursuant to the procedures for book-entry transfer described below.
As of the date of this prospectus, $390.0 million in aggregate principal
amount of the old notes were outstanding. Solely for reasons of administration,
we have fixed the close of business on , 1999 as the record date for
purposes of determining the persons to whom this prospectus and the letter of
transmittal will be mailed initially. Only a holder of the old notes (or such
holder's legal representative or attorney-in-fact) whose ownership is reflected
in the records of State Street Bank and Trust Company, as registrar, or whose
notes are held of record by the depositary, may participate in the exchange
offer. There will be no fixed record date for determining the eligible holders
of the old notes who are entitled to participate in the exchange offer. We
believe that, as of the date of this prospectus, no holder is our "affiliate"
(as defined in Rule 405 under the Securities Act of 1933).
We will be deemed to have accepted validly tendered old notes when, as and
if we give oral or written notice of our acceptance to the exchange agent. The
exchange agent will act as agent for the tendering holders of old notes and for
purposes of receiving the new notes from us. If any tendered old notes are not
accepted for exchange because of an invalid tender or otherwise, certificates
for the unaccepted old notes will be returned, without expense, to the
tendering holder as promptly as practicable after the expiration date.
Holders of old notes do not have appraisal or dissenters' rights under
applicable law or the indenture as a result of the exchange offer. We intend to
conduct the exchange offer in accordance with the applicable requirements of
the Securities Exchange Act of 1934 and the rules and regulations under the
Securities Exchange Act of 1934, including Rule 14e-1.
Holders who tender their old notes in the exchange offer will not be
required to pay brokerage commissions or fees or, subject to the instructions
in the letter of transmittal, transfer taxes with respect to the
20
<PAGE>
exchange of old notes pursuant to the exchange offer. We will pay all charges
and expenses, other than transfer taxes in certain circumstances, in connection
with the exchange offer. See "--Fees and Expenses."
Neither our company nor our board of directors makes any recommendation to
holders of old notes as to whether to tender any of their old notes pursuant to
the exchange offer. In addition, no one has been authorized to make any such
recommendation. Holders of old notes must make their own decision whether to
participate in the exchange offer and, if the holder chooses to participate in
the exchange offer, the aggregate principal amount of old notes to tender,
after reading carefully this prospectus and the letter of transmittal and
consulting with their advisors, if any, based on their own financial position
and requirements.
Conditions of the Exchange Offer
You must tender your old notes in accordance with the requirements of this
prospectus and the letter of transmittal in order to participate in the
exchange offer.
Notwithstanding any other provision of the exchange offer, or any extension
of the exchange offer, we will not be required to accept for exchange any old
notes, and we may terminate or amend the exchange offer if we are not permitted
to effect the exchange offer under applicable law or any interpretation of
applicable law by the staff of the Securities and Exchange Commission. If we
determine in our sole discretion that any of these events or conditions has
occurred, we may, subject to applicable law, terminate the exchange offer and
return all old notes tendered for exchange or may waive any condition or amend
the terms of the exchange offer.
We expect that the above conditions will be satisfied. The above conditions
are for our sole benefit and may be waived by us at any time in our sole
discretion. Our failure at any time to exercise any of the above rights will
not be a waiver of those rights and each right will be deemed an ongoing right
that may be asserted at any time. Any determination by us concerning the events
described above will be final and binding upon all parties.
Interest
Each new note will bear interest from the most recent date to which interest
has been paid or duly provided for on the old note surrendered in exchange for
such new note or, if no interest has been paid or duly provided for on such old
note, from April 23, 1999. Holders of the old notes whose old notes are
accepted for exchange will not receive accrued interest on their old notes for
any period from and after the last interest payment date to which interest has
been paid or duly provided for on their old notes prior to the original issue
date of the new notes or, if no such interest has been paid or duly provided
for, will not receive any accrued interest on their old notes, and will be
deemed to have waived the right to receive any interest on their old notes
accrued from and after such interest payment date or, if no such interest has
been paid or duly provided for, from and after April 23, 1999.
Procedures for Tendering Old Notes
The tender of a holder's old notes and our acceptance of old notes will
constitute a binding agreement between the tendering holder and us upon the
terms and conditions of this prospectus and the letter of transmittal. Unless a
holder tenders old notes according to the guaranteed delivery procedures or the
book-entry procedures described below, the holder must transmit the old notes,
together with a properly completed and executed letter of transmittal and all
other documents required by the letter of transmittal, to the exchange agent at
its address before 5:00 p.m., New York City time, on the expiration date. The
method of delivery of old notes, letters of transmittal and all other required
documents is at the election and risk of the tendering holder. If delivery is
by mail, we recommend delivery by registered mail, properly insured, with
return receipt requested. Instead of delivery of mail, we recommend that each
holder use an overnight or hand delivery service. In all cases, sufficient time
should be allowed to assure timely delivery.
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<PAGE>
Any beneficial owner of the old notes whose old notes are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender old notes in the exchange offer should contact that
registered holder promptly and instruct that registered holder to tender on its
behalf. If the beneficial owner wishes to tender directly, it must, prior to
completing and executing the letter of transmittal and tendering old notes,
make appropriate arrangements to register ownership of the old notes in its
name. Beneficial owners should be aware that the transfer of registered
ownership may take considerable time.
Any financial institution that is a participant in DTC's Book-Entry Transfer
Facility system may make book-entry delivery of the old notes by causing DTC to
transfer the old notes into the exchange agent's account in accordance with
DTC's procedures for such transfer. To be timely, book-entry delivery of old
notes requires receipt of a confirmation of a book-entry transfer before the
expiration date. Although delivery of the old notes may be effected through
book-entry transfer into the exchange agent's account at DTC, the letter of
transmittal, properly completed and executed, with any required signature
guarantees and any other required documents or an agent's message (as described
below), must in any case be delivered to and received by the exchange agent at
its address on or before the expiration date, or the guaranteed delivery
procedure set forth below must be complied with.
DTC has confirmed that the exchange offer is eligible for DTC's Automated
Tender Offer Program. Accordingly, participants in DTC's Automated Tender Offer
Program may, instead of physically completing and signing the applicable letter
of transmittal and delivering it to the exchange agent, electronically transmit
their acceptance of the exchange offer by causing DTC to transfer old notes to
the exchange agent in accordance with DTC's Automated Tender Offer Program
procedures for transfer. DTC will then send an agent's message to the exchange
agent.
The term "agent's message" means a message transmitted by DTC, received by
the exchange agent and forming part of the book-entry confirmation, which
states that DTC has received an express acknowledgment from a participant in
DTC's Automated Tender Offer Program that is tendering old notes that are the
subject of such book-entry confirmation; that the participant has received and
agrees to be bound by the terms of the applicable letter of transmittal or, in
the case of an agent's message relating to guaranteed delivery, that the
participant has received and agrees to be bound by the applicable notice of
guaranteed delivery; and that we may enforce such agreement against that
participant.
Each signature on a letter of transmittal or a notice of withdrawal must be
guaranteed unless the old notes are tendered:
. by a registered holder who has not completed the box entitled "Special
Delivery Instructions"; or
. for the account of an eligible institution (as described below).
If a signature on a letter of transmittal or a notice of withdrawal is
required to be guaranteed, the signature must be guaranteed by a participant in
a recognized Medallion Signature Program (a "Medallion Signature Guarantor").
If the letter of transmittal is signed by a person other than the registered
holder of the old notes, the old notes surrendered for exchange must be
endorsed by the registered holder, with the signature guaranteed by a Medallion
Signature Guarantor. If any letter of transmittal, endorsement, bond power,
power of attorney or any other document required by the letter of transmittal
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should sign in that capacity when signing.
Such person must submit to us evidence satisfactory, in our sole discretion, of
his or her authority to so act unless we waive such requirement.
As used in this prospectus with respect to the old notes, a "registered
holder" is any person in whose name the old notes are registered on the books
of the registrar. An "eligible institution" is a firm that is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office
or correspondent in the United States or any other "eligible guarantor
institution" as such term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934.
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<PAGE>
We will determine in our sole discretion all questions as to the validity,
form, eligibility (including time of receipt), acceptance and withdrawal of old
notes tendered for exchange. Our determination will be final and binding. We
reserve the absolute right to reject old notes not properly tendered and to
reject any old notes if acceptance might, in our judgment or our counsel's
judgment, be unlawful. We also reserve the absolute right to waive any defects
or irregularities or conditions of the exchange offer as to particular old
notes at any time, including the right to waive the ineligibility of any holder
who seeks to tender old notes in the exchange offer.
Our interpretation of the terms and conditions of the exchange offer,
including the letter of transmittal and its instructions, will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of old notes for exchange must be cured within such
period of time as we determine. Neither our company nor the exchange agent is
under any duty to give notification of defects in such tenders or will incur
any liability for failure to give such notification. The exchange agent will
use reasonable efforts to give notification of defects or irregularities with
respect to tenders of old notes for exchange but will not incur any liability
for failure to give such notification. Tenders of old notes will not be deemed
to have been made until such irregularities have been cured or waived.
By tendering, you will represent to us that, among other things:
. you are not our "affiliate" (as defined in Rule 405 under the Securities
Act of 1933);
. you will acquire the new notes in the ordinary course of your business;
. you are not a broker-dealer that acquired your notes directly from us in
order to resell them pursuant to Rule 144A under the Securities Act of
1933 or any other available exemption under the Securities Act of 1933;
. if you are a broker-dealer that acquired your notes as a result of
market-making or other trading activities, you will deliver a prospectus
in connection with any resale of new notes; and
. you are not participating, do not intend to participate and have no
arrangement or understanding with any person to participate in the
distribution of the new notes.
In connection with a book-entry transfer, each participant will confirm that
it makes the representations and warranties contained in the letter of
transmittal.
Guaranteed Delivery Procedures
If you wish to tender your old notes and:
. your old notes are not immediately available;
. you are unable to deliver on time your old notes or any other document
that you are required to deliver to the exchange agent; or
. you cannot complete the procedures for delivery by book-entry transfer on
time;
you may tender your old notes according to the guaranteed delivery procedures
described in the letter of transmittal. Those procedures require that:
. tender must be made by or through an eligible institution and a notice of
guaranteed delivery must be signed by the holder;
. on or before the expiration date, the exchange agent must receive from
the holder and the eligible institution a properly completed and executed
notice of guaranteed delivery by mail or hand delivery setting forth the
name and address of the holder, the certificate number or numbers of the
tendered old notes and the principal amount of tendered old notes; and
. properly completed and executed documents required by the letter of
transmittal and the tendered old notes in proper form for transfer or
confirmation of a book-entry transfer of such old notes into the exchange
agent's account at DTC must be received by the exchange agent within four
business days after the expiration date of the exchange offer.
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Any holder who wishes to tender old notes pursuant to the guaranteed
delivery procedures must ensure that the exchange agent receives the notice of
guaranteed delivery and letter of transmittal relating to such old notes before
5:00 p.m., New York City time, on the expiration date.
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of all the conditions to the exchange offer, we
will accept old notes that are properly tendered in the exchange offer prior to
5:00 p.m., New York City time, on the expiration date. The new notes will be
delivered promptly after acceptance of the old notes. For purposes of the
exchange offer, we will be deemed to have accepted validly tendered old notes
when, as and if we have given notice to the exchange agent.
Withdrawal Rights
Tenders of the old notes may be withdrawn by delivery of a written or
facsimile transmission notice to the exchange agent at its address set forth
under "--The Exchange Agent; Assistance" at any time before 5:00 p.m., New York
City time, on the expiration date. Any such notice of withdrawal must:
. specify the name of the person having deposited the old notes to be
withdrawn;
. identify the old notes to be withdrawn, including the certificate number
or numbers and principal amount of such old notes, or, in the case of old
notes transferred by book-entry transfer, the name and number of the
account at DTC to be credited;
. be signed by the holder in the same manner as the original signature on
the letter of transmittal by which old notes were tendered, including any
required signature guarantees, or be accompanied by a bond power in the
name of the person withdrawing the tender, in satisfactory form as
determined by us in our sole discretion, executed by the registered
holder, with the signature guaranteed by a Medallion Signature Guarantor,
together with the other documents required upon transfer by the
indenture; and
. specify the name in which the old notes are to be re-registered, if
different from the person who deposited the old notes.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by us, in our sole discretion. Any
old notes withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the exchange offer and will be returned to the holder
without cost as soon as practicable after withdrawal. Properly withdrawn old
notes may be retendered pursuant to the procedures described under "--
Procedures for Tendering Old Notes" at any time on or before the expiration
date.
The Exchange Agent; Assistance
State Street Bank and Trust Company is the exchange agent. All tendered old
notes, executed letters of transmittal and other related documents should be
directed to the exchange agent. Questions and requests for assistance and
requests for additional copies of the prospectus, the letter of transmittal and
other related documents should be addressed to the exchange agent as follows:
<TABLE>
<CAPTION>
By Registered or Certified Mail: By Hand or Overnight Courier:
<S> <C>
State Street Bank and Trust Company State Street Bank and Trust Company
Corporate Trust Department Corporate Trust Window, 5th Floor
P.O. Box 778 2 Avenue de Lafayette
Boston, Massachusetts 02102-0778 Boston, Massachusetts 02111-1724
</TABLE>
By Telephone:
(617) 662-1525
Attn: Mackenzie Elijah
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<PAGE>
Fees and Expenses
We will bear the expenses of soliciting old notes for exchange. The
principal solicitation is being made by mail by the exchange agent. Additional
solicitation may be made by telephone, facsimile or in person by officers and
regular employees of our company and our affiliates and by persons so engaged
by the exchange agent.
We will pay the exchange agent reasonable and customary fees for its
services and will reimburse the exchange agent for its reasonable out-of-pocket
expenses in connection with its services and pay other registration expenses,
including fees and expenses of the trustee under the indenture, filing fees,
blue sky fees and printing and distribution expenses.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or others soliciting
acceptance of the exchange offer.
We will pay all transfer taxes, if any, applicable to the exchange of old
notes pursuant to the exchange offer. If, however, a transfer tax is imposed
for any reason other than the exchange of old notes pursuant to the exchange
offer, then the amount of those transfer taxes, whether imposed on the
registered holder or any other persons, will be payable by the tendering
holder. If satisfactory evidence of payment of those taxes or exemption is not
submitted with the letter of transmittal, the amount of those transfer taxes
will be billed directly to such tendering holder.
Accounting Treatment
The new notes will be recorded at the same carrying value as the old notes,
as reflected in our accounting records on the date of the exchange.
Accordingly, we will recognize no gain or loss for accounting purposes. The
expenses of the exchange offer will be amortized over the term of the new
notes.
Consequences of Not Exchanging Old Notes
As a result of this exchange offer, we will have fulfilled most of our
obligations under the registration rights agreement. Holders who do not tender
their old notes, except for certain instances involving the initial purchasers
or holders of old notes who are not eligible to participate in the exchange
offer or who do not receive freely transferrable new notes pursuant to the
exchange offer, will not have any further registration rights under the
registration rights agreement or otherwise and will not have rights to receive
additional interest. Accordingly, any holder who does not exchange its old
notes for new notes will continue to hold the untendered old notes and will be
entitled to all the rights and subject to all the limitations applicable under
the indenture, except to the extent that such rights or limitations, by their
terms, terminate or cease to have further effectiveness as a result of the
exchange offer.
Any old notes that are not exchanged for new notes pursuant to the exchange
offer will remain restricted securities within the meaning of the Securities
Act of 1933. In general, such old notes may be resold only:
. to our company or any of our subsidiaries;
. inside the United States to a "qualified institutional buyer" in
compliance with Rule 144A under the Securities Act of 1933;
. inside the United States to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) or an "accredited investor" that, prior to such transfer, furnishes
or has furnished on its behalf by a U.S. broker-dealer to the trustee
under the indenture a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the new notes,
the form of which letter can be obtained from the trustee;
. outside the United States in compliance with Rule 904 under the
Securities Act of 1933;
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<PAGE>
. pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, if available; or
. pursuant to an effective registration statement under the Securities Act
of 1933.
Each accredited investor that is not a qualified institutional buyer and
that is an original purchaser of any of the old notes from the initial
purchasers will be required to sign a letter confirming that it is an
accredited investor under the Securities Act of 1933 and that it acknowledges
the transfer restrictions summarized above.
Resales of the New Notes
We are making the exchange offer in reliance on the position of the staff of
the Securities and Exchange Commission as set forth in interpretive letters
addressed to third parties in other transactions. However, we have not sought
our own interpretive letter. Although there has been no indication of any
change in the staff's position, we cannot assure you that the staff of the
Securities and Exchange Commission would make a similar determination with
respect to the exchange offer as it has in its interpretive letters to third
parties. Based on these interpretations by the staff, and except as provided
below, we believe that new notes may be offered for resale, resold and
otherwise transferred by a holder who participates in the exchange offer and is
not a broker-dealer without further compliance with the registration and
prospectus delivery provisions of the Securities Act of 1933. In order to
receive new notes that are freely tradeable, a holder must acquire the new
notes in the ordinary course of its business and may not participate, or have
any arrangement or understanding with any person to participate, in the
distribution (within the meaning of the Securities Act of 1933) of the new
notes. Holders wishing to participate in the exchange offer must make the
representations described in "--Procedures for Tendering Old Notes" above.
Any holder of old notes:
. who is our "affiliate" (as defined in Rule 405 under the Securities Act
of 1933);
. who did not acquire the new notes in the ordinary course of its business;
. who is a broker-dealer that purchased old notes from us to resell them
pursuant to Rule 144A under the Securities Act of 1933 or any other
available exemption under the Securities Act of 1933; or
. who intends to participate in the exchange offer for the purpose of
distributing (within the meaning of the Securities Act of 1933) new
notes;
will be subject to separate restrictions. Each holder in any of the above
categories:
. will not be able to rely on the interpretations of the staff of the
Securities Act of 1933 in the above-mentioned interpretive letters;
. will not be permitted or entitled to tender old notes in the exchange
offer; and
. must comply with the registration and prospectus delivery requirements of
the Securities Act of 1933 in connection with any sale or other transfer
of old notes, unless such sale is made pursuant to an exemption from such
requirements.
In addition, if you are a broker-dealer holding old notes acquired for your
own account, then you may be deemed a statutory "underwriter" within the
meaning of the Securities Act of 1933 and must deliver a prospectus meeting the
requirements of the Securities Act of 1933 in connection with any resales of
your new notes. Each broker-dealer that receives new notes for its own account
pursuant to the exchange offer must acknowledge that it acquired the old notes
for its own account as a result of market-making activities or other trading
activities and must agree that it will deliver a prospectus meeting the
requirements of the Securities Act of 1933 in connection with any resale of
those new notes. The letter of transmittal states that, by making the above
acknowledgment and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act of 1933.
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Based on the position taken by the staff of the Securities and Exchange
Commission in the interpretive letters referred to above, we believe that
broker-dealers that acquired old notes for their own accounts, as a result of
market-making or other trading activities ("Participating Broker-Dealers"), may
fulfill their prospectus delivery requirements with respect to the new notes
received upon exchange of old notes (other than old notes that represent an
unsold allotment from the original sale of the old notes) with a prospectus
meeting the requirements of the Securities Act of 1933, which may be the
prospectus prepared for an exchange offer so long as it contains a description
of the plan of distribution with respect to the resale of such new notes.
Accordingly, this prospectus, as it may be amended or supplemented, may be used
by a Participating Broker-Dealer during the period referred to below in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired by the Participating Broker-Dealer for its own
account as a result of market-making or other trading activities. Subject to
the provisions of the registration rights agreement, we have agreed that this
prospectus may be used by a Participating Broker-Dealer in connection with
resales of such new notes. See "Plan of Distribution." However, a Participating
Broker-Dealer that intends to use this prospectus in connection with the resale
of new notes received in exchange for old notes pursuant to the exchange offer
must notify us, or cause us to be notified, on or before the expiration date of
the exchange offer, that it is a Participating Broker-Dealer. Such notice may
be given in the space provided for that purpose in the letter of transmittal or
may be delivered to the exchange agent at the address set forth under "--The
Exchange Agent; Assistance." Any Participating Broker-Dealer that is our
"affiliate" may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act of 1933
in connection with any resale transaction.
Each Participating Broker-Dealer that tenders old notes pursuant to the
exchange offer will be deemed to have agreed, by execution of the letter of
transmittal, that upon receipt of notice from us of the occurrence of any event
or the discovery of any fact that makes any statement contained in this
prospectus untrue in any material respect or that causes this prospectus to
omit to state a material fact necessary in order to make the statements
contained herein, in light of the circumstances under which they were made, not
misleading or of the occurrence of other events specified in the registration
rights agreement, such Participating Broker-Dealer will suspend the sale of new
notes pursuant to this prospectus until we have amended or supplemented this
prospectus to correct such misstatement or omission and have furnished copies
of the amended or supplemented prospectus to the Participating Broker-Dealer or
we have given notice that the sale of the new notes may be resumed, as the case
may be.
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DESCRIPTION OF THE NOTES
The old notes were, and the new notes will be, issued as a single series of
securities under the Indenture, dated as of April 23, 1999, among Isle of
Capri, as issuer, certain of Isle of Capri's subsidiaries, as subsidiary
guarantors, and State Street Bank and Trust Company, as trustee. The form and
terms of the new notes are substantially identical to the form and terms of the
old notes, except that the new notes:
. will be registered under the Securities Act of 1933; and
. will not bear any legends restricting transfer.
The new notes will be issued solely in exchange for an equal principal
amount of old notes. As of the date of this prospectus, $390.0 million
aggregate principal amount of old notes is outstanding.
In the following summaries:
. ""new notes" refers to the registered notes being offered by this
prospectus;
. ""old notes" refers to your old notes that may be exchanged for new notes
in the exchange offer;
. ""notes'' refers collectively to the new notes and the old notes; and
. ""Isle of Capri" refers only to Isle of Capri Casinos, Inc. and not to
any of its Subsidiaries.
The following summaries of certain provisions of the indenture are not
complete and are subject to all the provisions of the indenture. Wherever we
refer to particular sections or defined terms used in the indenture, such
sections or defined terms are automatically incorporated into this prospectus.
We have filed a copy of the indenture with the Securities and Exchange
Commission and the indenture is incorporated by reference into the registration
statement. The meanings of some of the terms that are important in
understanding the following summaries are set forth below under the subheading
"Definitions."
Brief Description of the New Notes and the Guarantees
The New Notes
The new notes will be:
. general unsecured obligations of Isle of Capri;
. subordinated in right of payment to all existing and future Senior
Indebtedness of Isle of Capri;
. effectively subordinated to all secured Indebtedness of Isle of Capri;
. senior in right of payment to any future Indebtedness of Isle of Capri
that is specifically subordinated to the new notes; and
. unconditionally guaranteed by the Subsidiary Guarantors.
The Guarantees
The new notes will be guaranteed by each of the existing and future
Significant Restricted Subsidiaries of Isle of Capri, which are initially
substantially all of the subsidiaries of Isle of Capri except Casino America of
Colorado, Inc. and its 57%-owned subsidiary, Isle of Capri Black Hawk, L.L.C.
and its Subsidiaries.
The Subsidiary Guarantees of the new notes will be:
. general unsecured obligations of each Subsidiary Guarantor;
. subordinated in right of payment to all existing and future Senior
Indebtedness of each Subsidiary Guarantor;
. effectively subordinated to all secured Indebtedness of each Subsidiary
Guarantor; and
. senior in right of payment to any future Indebtedness of each Subsidiary
Guarantor that is specifically subordinated to the Subsidiary Guarantees.
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As of May 23, 1999, we and our Significant Restricted Subsidiaries had
approximately $66.0 million of Senior Indebtedness outstanding and our
subsidiaries that are not guarantors had approximately $76.5 million of debt
and other liabilities outstanding. As indicated above and as discussed in
detail below under the subheading "Subordination," payments on the new notes
will be subordinated to the payment of Senior Indebtedness of Isle of Capri and
payments under the Subsidiary Guarantees will be subordinated to the payment of
Senior Indebtedness of the Subsidiary Guarantors. The indenture will permit our
company and the Subsidiary Guarantors to incur additional Senior Indebtedness.
All of our Subsidiaries are currently "Restricted Subsidiaries," except for
Casino America of Colorado, Inc., Isle of Capri Black Hawk, L.L.C. and its
Subsidiaries, which are "Unrestricted Subsidiaries." However, under the
circumstances described below under the subheading "Restricted and Unrestricted
Subsidiaries," we are permitted to designate certain of our Subsidiaries as
"Unrestricted Subsidiaries." Unrestricted Subsidiaries are not subject to many
of the restrictive covenants in the indenture. Unrestricted Subsidiaries and
Restricted Subsidiaries that are not Significant Restricted Subsidiaries will
not guarantee the new notes.
Principal, Maturity and Interest
The new notes will be unsecured senior subordinated obligations of Isle of
Capri, limited in an aggregate principal amount to $390.0 million. The new
notes will mature on April 15, 2009, will accrue interest at the rate of 8 3/4%
per year and interest will be payable semiannually on each April 15 and October
15, commencing October 15, 1999.
We will make interest payments to the holders of record of new notes at the
close of business on each April 1 and October 1 immediately preceding each
interest payment date. Each new note will bear interest from the most recent
date to which interest has been paid or duly provided for on the old note
surrendered in exchange for such new note or, if no interest has been paid or
duly provided for on such old note, from April 23, 1999. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The new notes will be issued only in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. Principal of,
premium, if any, and interest on the new notes will be payable, and the new
notes will be transferable, at the office or agency of Isle of Capri maintained
for such purposes in the City of New York. Until otherwise designated by Isle
of Capri, Isle of Capri's office or agency in New York will be the office of
the trustee maintained for such purpose. In addition, interest may be paid by
wire transfer or check mailed to the Person entitled thereto as shown on the
register for the new notes. No service charge will be made for any registration
of transfer or exchange of the new notes, except for any tax or other
governmental charge that may be imposed in connection with the registration of
transfer or exchange.
Ranking
The new notes will be junior in right of payment to all existing and future
Senior Indebtedness of Isle of Capri, senior in right of payment to all future
subordinated Indebtedness of Isle of Capri and equal in right of payment with
any other future senior subordinated Indebtedness of Isle of Capri. Under the
indenture, Isle of Capri and its Restricted Subsidiaries may incur additional
Indebtedness, including Indebtedness which is senior to or equal in right of
payment with the new notes, subject to the limitations set forth under the
subheading "Certain Covenants--Limitation on Indebtedness." Additional
Indebtedness in the form of permitted FF&E Financing or Capitalized Lease
Obligations and certain other Indebtedness may be secured by certain assets of
Isle of Capri or a Restricted Subsidiary, as applicable. See "Certain
Covenants--Limitation on Liens."
Subsidiary Guarantees
Isle of Capri's payment obligations under the new notes will be jointly,
severally, fully and unconditionally guaranteed on an unsecured senior
subordinated basis by each of Isle of Capri's existing and future Significant
Restricted Subsidiaries. The Subsidiary Guarantees will be subordinated in
right of payment
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to all existing and future Senior Indebtedness of the Subsidiary Guarantors.
The new notes are not guaranteed by Casino America of Colorado, Inc., Isle of
Capri Black Hawk, L.L.C. or their Subsidiaries, any future Unrestricted
Subsidiaries or any existing or future Restricted Subsidiaries that are not
Significant Restricted Subsidiaries.
The indenture contains provisions the intent of which is to provide that the
obligations of each Subsidiary Guarantor will be limited to the maximum amount
that will, after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor and after giving effect to any collections from,
rights to receive contributions from or payments made by or on behalf of, any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its
contribution obligations under the indenture, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under any applicable federal,
state or foreign law. Each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guarantee will be entitled to contribution from
each other Subsidiary Guarantor so long as the exercise of this right does not
impair the rights of the holders of the new notes. See "Risk Factors--The
Guarantees May Be Unenforceable due to Fraudulent Conveyance Statutes."
The indenture provides that in the event of:
(1) a sale or other disposition of all or substantially all of the
assets of any Subsidiary Guarantor or the sale of a Subsidiary Guarantor by
way of merger, consolidation or otherwise that, in each case, complies with
the provisions set forth under the subheading "Certain Covenants--
Limitation on Asset Sales and Events of Loss";
(2) a Subsidiary Guarantor becoming an Unrestricted Subsidiary pursuant
to the terms of the indenture; or
(3) a sale or other disposition of all of the Capital Stock of any
Subsidiary Guarantor that complies with the provisions set forth under the
subheading "Certain Covenants--Limitation on Asset Sales and Events of
Loss";
then such Subsidiary Guarantor or the corporation acquiring such assets, as
applicable, shall be immediately released and relieved of any obligations under
its Subsidiary Guarantee without any further action, provided that Isle of
Capri complies with the provisions of the covenant described under the
subheading "Certain Covenants--Limitation on Asset Sales and Events of Loss."
Redemption and Repurchase Offers
Optional Redemption. The new notes will be redeemable, in whole or in part,
at Isle of Capri's option, at any time on or after April 15, 2004 at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest to the applicable redemption date, if
redeemed during the 12-month period beginning on April 15 of the years
indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2004.......................................................... 104.375%
2005.......................................................... 102.917%
2006.......................................................... 101.458%
2007 and thereafter........................................... 100.000%
</TABLE>
Equity Proceeds Redemption. In the event that Isle of Capri consummates a
Qualified Public Equity Offering on or before April 15, 2002, Isle of Capri may
redeem, at its option, up to 35% of the aggregate outstanding notes at a
redemption price of 108.75% of the principal amount of the notes so redeemed
plus accrued and unpaid interest to the redemption date, provided that, after
any such redemption, at least $253.5 million in aggregate principal amount of
notes remains outstanding.
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<PAGE>
Change of Control Repurchase Offer. In the event that a Change of Control
shall occur, Isle of Capri is obligated to make an offer to purchase all
outstanding new notes at a redemption price of 101% of the principal amount
thereof, plus accrued and unpaid interest thereon to the repurchase date. There
can be no assurance, however, that Isle of Capri will have sufficient funds to
repurchase the new notes in that circumstance. If a Change of Control occurs,
Isle of Capri is obligated to notify the holders of new notes in writing of
such occurrence and to make an offer to purchase (the "Change of Control
Offer"), on a business day (the "Change of Control Payment Date") not later
than 60 days following the date of the Change of Control, all new notes then
outstanding at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the Change of Control Payment
Date. The Change of Control Offer is required to remain open for at least 20
business days and until the close of business on the Change of Control Payment
Date. Neither the Board of Directors nor the trustee may waive or amend Isle of
Capri's obligation to so offer to purchase all outstanding new notes in the
event of a Change of Control without the holders of all of the outstanding
notes consenting to such waiver or amendment. See "Amendments and Waivers."
There can be no assurance that Isle of Capri's debt instruments will permit
a Change of Control Offer to be made. In particular, Isle of Capri's Senior
Credit Facility provides that prior to making any such offer Isle of Capri
would be required to (1) repay in full all obligations (including any unpaid
principal, interest, fees, costs and expenses owed by Isle of Capri under the
Senior Credit Facility) and terminate all commitments relating to the
Indebtedness under the Senior Credit Facility or offer to repay in full all
obligations (including any unpaid principal, interest, fees, costs and expenses
owing by Isle of Capri under the Senior Credit Facility and terminate all
commitments relating to the Indebtedness under the Senior Credit Facility and
to repay such obligations owed to each lender which has accepted such offer, or
(2) obtain the requisite consents under the Senior Credit Facility to permit
the prepayment of the new notes. Failure to make a Change of Control Offer upon
a Change of Control would constitute a default under the indenture, even if
such Change of Control Offer is prohibited by Isle of Capri's debt instruments.
Gaming Redemption. Notwithstanding any other provision of the indenture, if
any Gaming Authority requires that a holder or beneficial owner of new notes
must be licensed, qualified or found suitable under any applicable gaming law
and the holder or beneficial owner fails to apply for a license, qualification
or a finding of suitability within 30 days after being requested to do so in
such circumstance by the Gaming Authority or by Isle of Capri pursuant to an
order of the Gaming Authority, or if such holder or such beneficial owner is
not so licensed, qualified or found suitable, Isle of Capri shall have the
right, at its option:
(1) to require such holder or beneficial owner to dispose of such
holder's or beneficial owner's new notes within 30 days of receipt of such
notice or such finding by the applicable Gaming Authority or such earlier
date as may be ordered by such Gaming Authority; or
(2) to redeem the new notes of such holder or beneficial owner at a
redemption price equal to the lesser of:
(a) the principal amount thereof; and
(b) the price at which such holder or beneficial owner acquired the
new notes;
together with, in either case, accrued and unpaid interest, if any, to the
earlier of the date of redemption or the date of the finding of unsuitability,
if any, by such Gaming Authority, which may be less than 30 days following the
notice of redemption, if so ordered by such Gaming Authority. Isle of Capri
shall notify the trustee in writing of any such redemption as soon as
practicable. The holder or beneficial owner of new notes applying for a
license, qualification or a finding of suitability is obligated to pay all
costs of the licensure or investigation for such qualification or finding of
suitability.
Selection and Notice. In the event that less than all of the notes are to be
redeemed or repurchased at any time, selection of notes for redemption or
repurchase will be made by the trustee on a pro rata basis, by lot or by such
other method, if any, as the trustee shall deem fair and appropriate; provided
that no notes in a principal amount of $1,000 or less shall be redeemed or
repurchased in part. Unless otherwise specified herein,
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<PAGE>
notice of a redemption of or an offer to repurchase new notes shall be mailed
by first class mail not less than 30 days nor more than 60 days before the
redemption or purchase date to each holder of new notes at its registered
address. If any new note is to be redeemed or repurchased in part only, the
notice of redemption or offer to repurchase that relates to such new note shall
state the portion of the principal amount thereof to be redeemed or
repurchased. A new note in a principal amount equal to the unredeemed or
unpurchased portion thereof will be issued in the name of the holder thereof
upon cancellation of the original new note. On and after the redemption or
purchase date, interest will cease to accrue on new notes or portions thereof
redeemed or repurchased or called for redemption pursuant to the optional and
mandatory redemption provisions and not forwarded for redemption.
Isle of Capri will comply with Rule 14e-1 under the Securities Exchange Act
of 1934 in making any offer to repurchase new notes described above.
Certain instruments, agreements or other documents evidencing, governing or
otherwise relating to Indebtedness of Isle of Capri and its Subsidiaries may
prohibit any such repurchases or redemptions unless the Indebtedness has been
repaid in full and such instruments, agreements or other documents have been
terminated. In addition, a Change of Control might constitute an event of
default with respect to such Indebtedness permitting the holder (or an agent or
other representative of such holder on its behalf) to accelerate the maturity
thereof. In the event of a Change of Control, Isle of Capri will likely be
required to refinance such Indebtedness and may need to incur additional
Indebtedness in order to make payments for new notes to be redeemed or
repurchased. There can be no assurance that Isle of Capri will be able to
refinance such Indebtedness or to incur additional Indebtedness in order to
make such payments.
Restricted and Unrestricted Subsidiaries
The indenture provides that, subject to the exceptions described below, each
of Isle of Capri's Subsidiaries other than Casino America of Colorado, Inc. and
Isle of Capri Black Hawk, L.L.C. and its Subsidiaries, and any entity that
becomes a direct or indirect Subsidiary of Isle of Capri in the future will be
a Restricted Subsidiary unless Isle of Capri designates the Subsidiary to be an
Unrestricted Subsidiary. Except as provided below, Isle of Capri may designate
any existing or future Subsidiary of Isle of Capri as an Unrestricted
Subsidiary, provided that
(1) the Subsidiary to be so designated does not own any Indebtedness or
Capital Stock or own or hold any Lien on any asset or property of Isle of
Capri or any other Restricted Subsidiary;
(2) either (i) the Subsidiary to be so designated has total assets of
$100,000 or less or (ii) immediately before and after giving pro forma
effect to such designation
(a) Isle of Capri could incur $1.00 of Indebtedness pursuant to the
covenant described under the subheading "Certain Covenants--Limitation
on Indebtedness" (other than under clauses 2(a) through (2)(h)
thereof);
(b) no Default or Event of Default shall have occurred and be
continuing; and
(c) Isle of Capri could make, pursuant to the covenant described
under the subheading "Certain Covenants--Limitation on Restricted
Payments," the Restricted Payment arising from the designation as
described in the next paragraph; and
(3) all transactions between the Subsidiary to be so designated and its
Affiliates remaining in effect are permitted pursuant to the covenant
described under the subheading "Certain Covenants--Limitation on
Transactions with Affiliates."
Notwithstanding the foregoing, Isle of Capri may not designate any existing
or future Subsidiary that holds, owns or operates, directly or indirectly, any
assets or function directly relating to or necessary for the conduct of casino
gaming at the Isle-Biloxi, the Isle-Vicksburg, the Isle-Bossier City, the Isle-
Lake Charles or the Isle-Tunica as an Unrestricted Subsidiary. Any Investment
made by Isle of Capri or any Restricted Subsidiary in a Restricted Subsidiary
which is redesignated an Unrestricted Subsidiary shall thereafter be
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<PAGE>
considered as having been a Restricted Payment (to the extent not previously
included as a Restricted Payment) made on the day such Subsidiary is designated
an Unrestricted Subsidiary in the amount of the greater of
(1) the sum of the Fair Market Value of the interest of Isle of Capri
and any of its Restricted Subsidiaries in such Subsidiary on such date as
determined in accordance with GAAP and the amount of any obligation of such
Subsidiary which Isle of Capri or any Restricted Subsidiary has guaranteed
or for which it is in any other manner liable; and
(2) the amount of the Investments made by Isle of Capri and any of its
Restricted Subsidiaries in such Subsidiary.
Any Subsidiary Guarantee entered into by a Restricted Subsidiary which is
subsequently redesignated an Unrestricted Subsidiary shall be automatically
released at such time as the Restricted Subsidiary becomes an Unrestricted
Subsidiary. Unless so designated as an Unrestricted Subsidiary, any Subsidiary
of Isle of Capri shall be classified as a Restricted Subsidiary.
An Unrestricted Subsidiary may be redesignated a Restricted Subsidiary,
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Isle of Capri of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if
(1) such Indebtedness is permitted to be incurred under the covenant
described under the subheading "Certain Covenants--Limitation on
Indebtedness" (other than under clauses 2(a) through 2(h) thereof); and
(2) no Default or Event of Default shall have occurred and be
continuing.
The designation of an Unrestricted Subsidiary or the removal of such
designation is required to be made by the Board of Directors of Isle of Capri
evidenced by a Board Resolution stating that the Board of Directors has made
the designation in accordance with the indenture. Isle of Capri is required to
deliver to the trustee this Board Resolution together with an Officers'
Certificate certifying that the designation complies with the indenture. The
designation will be effective as of the date specified in the applicable Board
Resolution, which may not be before the date the applicable Officers'
Certificate is delivered to the trustee.
Subordination
The payment of the principal of, premium, if any, and interest on and any
other amounts owing with respect to the new notes will be subordinated in right
of payment, as described below, to the prior payment in full of all Senior
Indebtedness.
The indenture provides that in the event of any insolvency or bankruptcy
case or proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to Isle of Capri,
or any liquidation, dissolution or other winding-up of Isle of Capri, whether
voluntary or involuntary, or any assignment for the benefit of creditors or
other marshaling of assets or liabilities of Isle of Capri,
(1) all Senior Indebtedness of Isle of Capri and Senior Indebtedness of
the Subsidiary Guarantors must be paid in full before any payment or
distribution (excluding any payment or distribution of certain permitted
equity or subordinated securities) is made on account of the principal of,
premium, if any, or interest on the new notes or the Subsidiary Guarantees,
respectively; and
(2) until all Senior Indebtedness is paid in full, any distribution to
which holders of the new notes would be entitled but for this provision
shall be made to holders of Senior Indebtedness as their interests may
appear, except that holders of the new notes may receive Capital Stock or
any debt securities that are subordinated to Senior Indebtedness to at
least the same extent as the new notes.
Similarly, in the event of a bankruptcy, liquidation, reorganization or
similar proceeding relating to any Subsidiary Guarantor, its assets would be
available to pay obligations under its Subsidiary Guarantee only after all
Senior Indebtedness of that Subsidiary Guarantor is paid in full.
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<PAGE>
During the continuance of any default in the payment of any Designated
Senior Indebtedness of Isle of Capri or a Subsidiary Guarantor at maturity or
pursuant to which the maturity thereof may immediately be accelerated beyond
any applicable grace period, no payment or distribution of any assets of Isle
of Capri or such Subsidiary Guarantor of any kind or character (excluding any
payment or distribution of certain permitted equity or subordinated securities
and other than payments from trusts previously created pursuant to the
provisions described under the subheading "Defeasance") shall be made on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the new notes unless and until such default
has been cured or waived or has ceased to exist or such Designated Senior
Indebtedness shall have been discharged or paid in full.
During the continuance of any non-payment default with respect to any
Designated Senior Indebtedness of Isle of Capri or a Subsidiary Guarantor
pursuant to which the maturity thereof may be accelerated (in accordance with
its terms a "Non-payment Default") and after the receipt by the trustee from
the representatives of holders of such Designated Senior Indebtedness of a
written notice of such Non-payment Default, no payment or distribution of any
assets of Isle of Capri or such Subsidiary Guarantor of any kind or character
(excluding any payment or distribution of certain permitted equity or
subordinated securities and other than payments from trusts previously created
pursuant to the provisions described under the subheading "Defeasance") may be
made by Isle of Capri or such Subsidiary Guarantor on account of the principal
of, premium, if any, or interest on, or the purchase, redemption or other
acquisition of, the new notes for the period specified below (the "Payment
Blockage Period").
The Payment Blockage Period will commence upon the receipt of written notice
of a Non-payment Default by the trustee from the representatives of holders of
Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and will end on the earlier to occur of the following events:
(1) 179 days shall have elapsed since the receipt of such notice of a
Non-payment Default (provided that such Designated Senior Indebtedness
shall not theretofore have been accelerated);
(2) such default is cured or waived or ceases to exist or such
Designated Senior Indebtedness is discharged; or
(3) such Payment Blockage Period shall have been terminated by written
notice to Isle of Capri or the trustee from the representatives of holders
of Designated Senior Indebtedness initiating such Payment Blockage Period.
After the end of any Payment Blockage Period, Isle of Capri shall promptly
resume making any and all required payments in respect of the new notes,
including any missed payments. Notwithstanding anything in the subordination
provisions of the indenture or the new notes to the contrary,
(1) in no event shall a Payment Blockage Period extend beyond 179 days
from the date of the receipt by the trustee of the notice initiating such
Payment Blockage Period;
(2) there shall be a period of at least 186 consecutive days in each
365-day period when no Payment Blockage Period is in effect; and
(3) not more than one Payment Blockage Period with respect to the new
notes may be commenced within any period of 365 consecutive days.
A Non-payment Default with respect to Designated Senior Indebtedness that
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period cannot be made the basis for the commencement of a
second Payment Blockage Period, whether or not within a period of 365
consecutive days, unless such default has been cured or waived for a period of
not less than 90 consecutive days and subsequently recurs.
As used herein, the term "Designated Senior Indebtedness" means (1)
Indebtedness incurred under the Senior Credit Facility and (2) any other Senior
Indebtedness in a principal amount of at least $25.0 million outstanding which,
at the time of determination, is specifically designated in the instrument
governing such
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<PAGE>
Senior Indebtedness as "Designated Senior Indebtedness" by Isle of Capri and
is otherwise permitted to be "Designated Senior Indebtedness" under the Senior
Credit Facility.
If Isle of Capri fails to make any payment on the new notes when due or
within any applicable grace period, whether or not on account of the payment
blockage provisions referred to above, such failure would constitute an Event
of Default under the indenture and would enable the holders of the new notes
to accelerate the maturity thereof. See the information under the subheading
"Events of Default and Remedies."
By reason of such subordination, in the event of liquidation or insolvency,
creditors of Isle of Capri who are holders of Senior Indebtedness may recover
more, ratably, than the holders of the new notes and funds which would be
otherwise payable to the holders of the new notes will be paid to the holders
of Senior Indebtedness to the extent necessary to pay the Senior Indebtedness
in full, and Isle of Capri may be unable to meet its obligations fully with
respect to the new notes.
Certain Covenants
Set forth below are summaries of some of the covenants contained in the
indenture.
Limitation on Indebtedness. (1) Isle of Capri may not, and may not cause or
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume, suffer to exist, guarantee or in any manner become liable for the
payment of ("incur") any Indebtedness (including any Acquired Indebtedness) or
any Disqualified Stock unless
(a) such Indebtedness or Disqualified Stock is incurred by Isle of Capri
or a Subsidiary Guarantor;
(b) no Default or Event of Default shall have occurred and be continuing
at the time of, or would occur after giving pro forma effect to, such
incurrence of Indebtedness or Disqualified Stock; and
(c) on the date of such incurrence (the "Incurrence Date"), the
Consolidated Coverage Ratio of Isle of Capri, after giving pro forma effect
to such incurrence of such Indebtedness, would be at least 2.0 to 1.0.
(2) Notwithstanding the foregoing, Isle of Capri and its Restricted
Subsidiaries may incur
(a) Indebtedness and Disqualified Stock issued to and held by Isle of
Capri or a wholly owned Restricted Subsidiary of Isle of Capri, provided
that (i) any subsequent issuance or transfer of any Capital Stock that
results in any such wholly owned Restricted Subsidiary ceasing to be a
wholly owned Restricted Subsidiary or (ii) any transfer of such
Indebtedness to a Person other than Isle of Capri or a wholly owned
Restricted Subsidiary of Isle of Capri, will be deemed to be the incurrence
of such Indebtedness or issuance of Disqualified Stock by the issuer
thereof;
(b) Indebtedness under the old notes and the new notes, the Subsidiary
Guarantees and the indenture;
(c) Indebtedness outstanding on April 23, 1999;
(d) FF&E Financing and Capitalized Lease Obligations to acquire or
refinance furniture, fixtures and equipment incident to and useful in the
operation of Casinos, Casino Hotels or any Casino Related Facility,
provided that the sum of the aggregate principal amount of FF&E Financing
and Capitalized Lease Obligations does not exceed, in the aggregate at any
time outstanding, the sum of
(i) the principal amount of FF&E Financing and Capitalized Lease
Obligations outstanding on April 23, 1999; plus
(ii) $15.0 million; plus
(iii) $10.0 million times the number of Casinos acquired or developed
by Isle of Capri and its Restricted Subsidiaries after April 23, 1999;
plus
(iv) $7.5 million times the number of Casino Hotels acquired or
developed by Isle of Capri and its Restricted Subsidiaries after April
23, 1999;
(e) Indebtedness in respect of performance bonds, letters of credit,
bankers' acceptances and surety and appeal bonds incurred in the ordinary
course of business, other than such Indebtedness outstanding on
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April 23, 1999 (or refinancings thereof permitted under clause (f) below),
in an amount not to exceed $15.0 million in the aggregate at any time
outstanding; Interest Rate and Currency Protection Obligations entered into
in connection with the incurrence of Indebtedness otherwise permitted under
the indenture; and Indebtedness arising under agreements providing for
indemnification, adjustment of purchase price and similar obligations in
connection with the disposition of property or assets;
(f) Indebtedness issued in exchange for or to repay, prepay, repurchase,
redeem, defease, retire or refinance ("refinance") any Indebtedness (x)
incurred pursuant to the provisions of Section 1 above or (y) permitted by
clauses (b) or (c) above or this clause (f) of this Section 2, provided
that
(i) if the principal amount of the Indebtedness so issued shall
exceed the sum of the principal amount of the Indebtedness so exchanged
or refinanced plus any prepayment premium and costs reasonably incurred
to effect the exchange or refinancing, then such excess shall be
permitted only to the extent that it is otherwise permitted to be
incurred under this covenant; and
(ii) the Indebtedness so issued
(A) has a Stated Maturity not earlier than the Stated Maturity of
the Indebtedness so exchanged or refinanced;
(B) has an average life to Stated Maturity equal to or greater
than the remaining average life to Stated Maturity of the
Indebtedness so exchanged or refinanced; and
(C) is subordinated to the notes to at least the same extent as
the Indebtedness so exchanged or refinanced if such Indebtedness
that is being exchanged or refinanced is subordinated to the notes.
(g) Indebtedness incurred by Isle of Capri and its Restricted
Subsidiaries under one or more Credit Facilities in an aggregate principal
amount at any one time outstanding not to exceed $200.0 million (less any
Indebtedness incurred pursuant to this clause (g) that is permanently
prepaid, repaid, redeemed, purchased or retired with Net Cash Proceeds from
any Asset Sale or Event of Loss pursuant to the terms of the covenant
described under the subheading "Limitation on Asset Sales and Events of
Loss"); and
(h) Indebtedness, other than Indebtedness permitted by clauses (a)
through (g) above, which does not exceed $25.0 million (less any
Indebtedness incurred pursuant to this clause (h) that is permanently
prepaid, repaid, redeemed, purchased or retired with Net Cash Proceeds from
any Asset Sale or Event of Loss pursuant to the terms of the covenant
described under the subheading "Limitation on Asset Sales and Events of
Loss") in the aggregate at any time outstanding.
Limitation on Liens. Isle of Capri may not, and may not cause or permit any
Restricted Subsidiary, directly or indirectly, to, create, incur, assume or
suffer to exist any Lien of any kind upon any of its existing or future
property or assets (including, without limitation, any income or profits) or
any proceeds therefrom, unless the new notes are equally and ratably secured
(except that Liens securing Subordinated Indebtedness shall be expressly
subordinate to the Liens securing the notes to the same extent such
Subordinated Indebtedness is subordinate to the notes), other than:
(1) Liens existing on April 23, 1999;
(2) Liens securing Senior Indebtedness of Isle of Capri and the
Subsidiary Guarantors permitted to be incurred under the indenture;
(3) Liens securing FF&E Financing or Capitalized Lease Obligations
permitted pursuant to clause (2)(d) of the covenant described under the
subheading "Limitation on Indebtedness" provided that
(a) the amount of such Indebtedness incurred in any individual case
secured by such a Lien, at the time such Indebtedness is incurred, does
not exceed the lesser of (i) the cost and (ii) the Fair Market Value of
the property or assets purchased or acquired with the proceeds of such
FF&E Financing or Capitalized Lease Obligation;
(b) the Indebtedness secured by such Lien shall have otherwise been
permitted to be incurred under the indenture;
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(c) such Lien shall attach to such property or assets upon their
acquisition; and
(d) such Lien (other than a Permitted Vessel Lien) shall not
encumber or attach to any other assets or property of Isle of Capri or
any of its other Restricted Subsidiaries;
(4) Liens securing Indebtedness incurred pursuant to clause (2)(h) of
the covenant described under the subheading "Limitation on Indebtedness";
(5) the replacement, extension or renewal of any Lien permitted by
clauses (1) through (4) upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in the
principal amount), other than to pay any prepayment premium and costs
reasonably incurred to effect the replacement, extension or renewal, or
change in any direct or contingent obligor of the Indebtedness secured
thereby; and
(6) Permitted Liens.
Limitation on Restricted Payments. Isle of Capri may not make, directly or
indirectly, and may not permit any Restricted Subsidiary to make, directly or
indirectly, any Restricted Payment unless:
(1) no Default or Event of Default shall have occurred and be continuing
at the time of and after giving pro forma effect to such Restricted
Payment;
(2) immediately after giving effect to such Restricted Payment, Isle of
Capri could incur at least $1.00 of Indebtedness pursuant to the covenant
described under the subheading "Limitation on Indebtedness" (other than
under clauses (2)(a) through (2)(h) thereof); and
(3) the aggregate amount of all Restricted Payments declared or made
after April 23, 1999 does not exceed the sum of the following amounts,
without duplication:
(a) 50% of Consolidated Net Income (or in the event such
Consolidated Net Income shall be a deficit, minus 100% of such deficit)
accrued during the period (treated as one accounting period) beginning
on January 25, 1999 and ending on the last day of Isle of Capri's last
fiscal quarter ending before the date of such proposed Restricted
Payment; plus
(b) an amount equal to the aggregate Net Cash Proceeds received by
Isle of Capri from the issuance or sale (other than to a Subsidiary) of
its Capital Stock (excluding Disqualified Stock, but including Capital
Stock issued upon conversion of convertible Indebtedness and from the
exercise of options, warrants or rights to purchase Capital Stock
(other than Disqualified Stock) of Isle of Capri) on or after April 23,
1999; plus
(c) to the extent not otherwise included in Isle of Capri's
Consolidated Net Income, 100% of cash dividends, if applicable, or
distributions or the amount of the cash principal and interest payments
received since April 23, 1999 by Isle of Capri or any Restricted
Subsidiary from any Unrestricted Subsidiary or in respect of any
Investment constituting a Restricted Payment (other than dividends, if
applicable, or distributions to pay obligations owed to a Person other
than Isle of Capri or any Restricted Subsidiary by or with respect to
such Unrestricted Subsidiary, such as income taxes) until the entire
amount of the Investment in such Unrestricted Subsidiary has been
received or the entire amount of such Investment constituting a
Restricted Payment has been returned, as the case may be, and 50% of
such amounts thereafter;
provided that, if no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Restricted
Payment, the foregoing provisions will not prohibit
(w) the payment of any dividend within 60 days after the date of its
declaration if, at the date of declaration, such payment would be
permitted by such provisions;
(x) the redemption or repurchase of any Capital Stock or
Indebtedness of Isle of Capri, including the new notes, if required by
any Gaming Authority or if determined, in the good faith judgment of
the Board of Directors, to be necessary to prevent the loss or to
secure the grant or reinstatement of any gaming license or other right
to conduct lawful gaming operations;
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(y) the repurchase of Capital Stock from directors, officers and
employees (or their respective estates or beneficiaries) upon death,
disability, retirement or termination of employment up to an amount not
to exceed an aggregate of $2.0 million in any fiscal year of Isle of
Capri; and
(z) Permitted Investments.
The full amount of any Restricted Payment made pursuant to the foregoing
clause (w) or clause (x) or clause (2) of the definition of Permitted
Investments, however, will be included in the calculation of the aggregate
amount of Restricted Payments available to be made pursuant to clause (c)
above.
Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries. Isle of Capri may not, directly or indirectly, and may not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or enter into any agreement with any Person that would cause
any consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to
(1) pay dividends, in cash or otherwise, or make any other distributions
on its Capital Stock or any other interest or participation in, or measured
by, its profits owned by, or pay any Indebtedness owed to, Isle of Capri or
a Restricted Subsidiary;
(2) make any loans or advances to Isle of Capri or any Restricted
Subsidiary; or
(3) transfer any of its properties or assets to Isle of Capri or any
Restricted Subsidiary, except in each case for
(a) restrictions imposed by the notes, the indenture and the
Subsidiary Guarantees;
(b) customary non-assignment provisions restricting subletting or
assignment of any lease entered into in the ordinary course of
business, consistent with industry practices;
(c) restrictions imposed by applicable gaming laws or any applicable
Gaming Authority;
(d) restrictions under any agreement relating to any property,
assets or business acquired by Isle of Capri or its Restricted
Subsidiaries, which restrictions existed at the time of acquisition,
were not put in place in anticipation of such acquisition and are not
applicable to any Person other than the Person acquired, or to any
property, assets or business other than the property, assets and
business of the Person acquired;
(e) any such contractual encumbrance in existence as of April 23,
1999 or imposed by or in connection with the incurrence of any FF&E
Financing or Capitalized Lease Obligations permitted pursuant to clause
(2)(d) of the covenant described under the subheading "Limitation on
Indebtedness," provided such encumbrance does not have the effect of
restricting the payment of dividends to Isle of Capri or any Restricted
Subsidiary or the payment of Indebtedness owed to Isle of Capri or any
Restricted Subsidiary or reducing the amount of any such dividends or
payments;
(f) any restrictions with respect to Capital Stock or assets,
respectively, of a Restricted Subsidiary of Isle of Capri imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary;
(g) restrictions imposed by the Senior Credit Facility; and
(h) replacements of restrictions imposed pursuant to clauses (a)
through (g) that are no more restrictive than those being replaced.
Limitation on Asset Sales and Events of Loss. Isle of Capri may not,
directly or indirectly, and may not permit any Restricted Subsidiary to,
directly or indirectly, make any Asset Sale unless
(1) at the time of such Asset Sale, Isle of Capri or such Restricted
Subsidiary, as the case may be, receives consideration at least equal to
the Fair Market Value of the assets sold or otherwise disposed of;
(2) the proceeds therefrom consist of at least 75% cash or Cash
Equivalents; and
(3) no Default or Event of Default shall have occurred and be continuing
at the time of or after giving pro forma effect to such Asset Sale.
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Isle of Capri and its Restricted Subsidiaries may, on or before the 180th
day after the date on which Isle of Capri or such Restricted Subsidiary
consummates an Asset Sale or suffers an Event of Loss, apply 100% of the Net
Cash Proceeds therefrom to either (1) prepay, repay, redeem or purchase and
permanently reduce the commitments under any Senior Indebtedness or (2) make a
Permitted Related Investment or enter into a binding agreement to make a
Permitted Related Investment. The amount of such Net Cash Proceeds not so
applied to either prepay, repay, redeem or purchase any Senior Indebtedness or
make a Permitted Related Investment will constitute "Excess Sale/Loss
Proceeds." When the aggregate amount of Excess Sale/Loss Proceeds equals $10.0
million, Isle of Capri is obligated to make an offer to purchase (a "Excess
Sale/Loss Proceeds Offer") from all holders of the notes in accordance with
the procedures set forth in the indenture up to a maximum principal amount
(expressed as a multiple of $1,000) of notes equal to such Excess Sale/Loss
Proceeds, less the accrued and unpaid interest on such notes. The offer price
for the notes will be payable in cash in an amount equal to 100% of the
principal amount of the notes plus accrued and unpaid interest, if any, to the
date of repurchase. Each Excess Sale/Loss Proceeds Offer shall remain open for
a period of at least 20 business days. To the extent an Excess Sale/Loss
Proceeds Offer is not fully subscribed to by the holders of the notes, Isle of
Capri may retain such unutilized portion of the Excess Sale/Loss Proceeds for
any application or use not prohibited by the terms of the indenture.
Limitation on Disposition of Stock of Restricted Subsidiaries. Isle of
Capri shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, issue, transfer, convey, sell, lease or otherwise dispose of
any shares of Capital Stock of a Restricted Subsidiary to any Person (other
than to Isle of Capri or a wholly owned Subsidiary), unless (1) (a) such
transfer, conveyance, sale, lease or other disposition is of all of the
Capital Stock of such Restricted Subsidiary or (b) after giving effect to such
transfer, conveyance, sale, lease or other disposition, Isle of Capri or the
applicable Subsidiary Guarantor remains the owner of a majority of the Capital
Stock of such Restricted Subsidiary and (2) the Net Cash Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in
accordance with the covenant described under the subheading "Limitation on
Asset Sales and Events of Loss." No Restricted Subsidiary shall issue any
preferred stock or other Capital Stock having a preference as to dividends,
upon liquidation or otherwise over the Capital Stock of such Restricted
Subsidiary owned, directly or indirectly, by Isle of Capri.
Limitation on Transactions with Affiliates. Isle of Capri may not, and Isle
of Capri may not permit, cause or suffer any Restricted Subsidiary to, conduct
any business or enter into any transaction or series of transactions
(including, without limitation, the sale, transfer, disposition, purchase,
exchange, lease or use of assets, property or services) or enter into any
contract, agreement, understanding, loan, advance or guarantee with or for the
benefit of any of their respective Affiliates, including, without limitation,
any Unrestricted Subsidiary, other than Isle of Capri or another Restricted
Subsidiary (each an "Affiliate Transaction"), except
(1) such transactions that are set forth in writing and are entered into
in good faith and on terms that are no less favorable to Isle of Capri or
such Restricted Subsidiary, as the case may be, than those that could have
been obtained in a comparable transaction on an arm's-length basis from a
Person not an Affiliate of Isle of Capri or such Restricted Subsidiary or,
if in the reasonable opinion of a majority of the Independent directors of
Isle of Capri, such standard is inapplicable to the subject Affiliate
Transaction, then such Affiliate Transaction is fair to Isle of Capri or
the Restricted Subsidiary, as the case may be (or to the stockholders as a
group in the case of a pro rata dividend or other distribution to
stockholders permitted under the subheading "Limitation on Restricted
Payments"), from a financial point of view;
(2) such transactions that were existing as of April 23, 1999; and
(3) reasonable and customary compensation and indemnification of
directors, officers and employees.
In addition, Isle of Capri and its Restricted Subsidiaries may not enter
into any Affiliate Transaction (or series of related Affiliate Transactions
that are part of a common plan) under clause (1) above involving aggregate
payments or other Fair Market Value
(1) in excess of $5.0 million unless, prior to the consummation thereof,
the transaction is approved by the Board of Directors of Isle of Capri,
including a majority of the disinterested directors, such
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approval to be evidenced by a Board Resolution delivered to the trustee
with an Officers' Certificate stating that the Board of Directors has
determined that the Affiliate Transaction complies with clause (1) above;
and
(2) in excess of $15.0 million unless, prior to the consummation
thereof, Isle of Capri shall have received an opinion, from an independent
nationally recognized firm experienced in the appraisal or similar review
of similar types of transactions, that such transaction or series of
related transactions is on terms which are fair, from a financial point of
view, to Isle of Capri or such Restricted Subsidiary.
Change In Nature of Business. Isle of Capri may not, and may not permit any
of its Restricted Subsidiaries to, own, manage or conduct any operation other
than a Permitted Line of Business.
Consolidation, Merger, Conveyance, Transfer or Lease. Neither Isle of Capri
nor any Restricted Subsidiary may consolidate with or merge with or into or
sell, assign, convey, lease or transfer all or substantially all of its
properties and assets to any Person or group of affiliated Persons in a single
transaction or through a series of transactions, except that:
(1) Isle of Capri may consolidate with or merge with or into or sell,
assign, convey, lease or transfer all or substantially all of its
properties and assets to any Person or group of affiliated Persons in a
single transaction or through a series of transactions if:
(a) Isle of Capri is the continuing Person or the resulting,
surviving or transferee Person (the "surviving entity") is a
corporation organized and existing under the laws of the United States
or any State thereof or the District of Columbia;
(b) the surviving entity expressly assumes, by a supplemental
indenture or similar instrument executed and delivered to the trustee,
in form and substance reasonably satisfactory to the trustee, all of
the obligations of Isle of Capri under the notes and the indenture;
(c) immediately before and immediately after giving pro forma effect
to such transaction, or series of transactions (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and
be continuing;
(d) if the transaction or series of transactions involves Isle of
Capri, Isle of Capri or the surviving entity, immediately before and
after giving effect to such transaction or series of transactions
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of the
transaction or series of transactions), has a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of Isle of Capri
immediately prior to such transaction or series of transactions;
(e) if the transaction or series of transactions involves Isle of
Capri, immediately after giving effect to such transaction or series of
transactions on a pro forma basis, Isle of Capri or the surviving
entity could incur at least $1.00 of Indebtedness pursuant to the
covenant described under the subheading "Limitation on Indebtedness"
(other than under clauses (2)(a) through (2)(h) thereof);
(f) Isle of Capri or the surviving entity has delivered to the
trustee an Officers' Certificate stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture
is required in connection with such transaction or series of
transactions, such supplemental indenture complies with this covenant
and that all conditions precedent in the indenture relating to the
transaction or series of transactions have been satisfied;
(g) such transaction will not result in the loss of any gaming or
other license necessary for the continued operation of any Restricted
Subsidiary as conducted immediately prior to such consolidation,
merger, conveyance, transfer or lease;
(h) if any property of Isle of Capri or any Restricted Subsidiary
would thereupon become subject to any Lien, the covenant described
under the subheading "Limitation on Liens" is complied with; and
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(2) a Restricted Subsidiary may consolidate with or merge into or sell,
assign, convey, lease or transfer all or substantially all of its
properties and assets to Isle of Capri or to any Restricted Subsidiary if:
(a) the surviving entity is Isle of Capri or a Restricted
Subsidiary;
(b) the surviving entity expressly assumes, by a supplemental
indenture or similar instrument executed and delivered to the trustee,
in form and substance reasonably satisfactory to the trustee, all of
the obligations of such Restricted Subsidiary under the notes, the
Subsidiary Guarantees, if applicable, and the indenture; and
(c) such transaction will not result in the loss of any gaming or
other license necessary for the continued operation of any Restricted
Subsidiary as conducted immediately prior to such sale, assignment,
conveyance, transfer or lease.
Reports To Holders Of New Notes. Whether or not Isle of Capri is subject to
the periodic reporting requirements under the Securities Exchange Act of 1934,
it shall deliver to the trustee and each holder of new notes (1) all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if Isle of Capri was required
to file such forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" that describes the financial
condition and results of operations of Isle of Capri and its Consolidated
Subsidiaries (provided that, such reports shall show in reasonable detail,
either on the face of the financial statements or in the footnotes thereto, the
financial condition and results of operations of Isle of Capri and its
Significant Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries and other Subsidiaries
of Isle of Capri that are not Subsidiary Guarantors with such reasonable detail
as required by the Securities and Exchange Commission or as would be required
by the Securities and Exchange Commission if Isle of Capri was subject to the
periodic reporting requirements of the Securities Exchange Act of 1934) and,
with respect to the annual information only, a report thereon by Isle of
Capri's certified independent accountants and (2) all current reports that
would be required to be filed with the Securities and Exchange Commission on
Form 8-K if Isle of Capri was required to file such reports, in each case
within the time periods specified in the Securities and Exchange Commission's
rules and regulations. Following the consummation of this exchange offer,
whether or not required by the rules and regulations of the Securities and
Exchange Commission, Isle of Capri will file a copy of all such information and
reports with the Securities and Exchange Commission for public availability
within the time periods specified in the Securities and Exchange Commission's
rules and regulations (unless the Securities and Exchange Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, Isle of Capri has
agreed that, for so long as any notes remain outstanding, it will furnish to
the holders of the notes and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act of 1933.
Limitation on Other Senior Subordinated Indebtedness. Isle of Capri shall
not, and shall not cause or permit any of the Restricted Subsidiaries to,
create, incur, assume, guarantee or in any other manner become liable with
respect to any Indebtedness other than the notes and the Subsidiary Guarantees
that is subordinate in right of payment to any Senior Indebtedness of Isle of
Capri or such Restricted Subsidiary, as applicable, unless such Indebtedness is
either (1) equal right of payment with the notes or the Subsidiary Guarantee,
as applicable, or (2) subordinate in right of payment to the notes or the
Subsidiary Guarantee, as applicable, in the same manner and at least to the
same extent as the notes are subordinated to Senior Indebtedness of Isle of
Capri or as such Subsidiary Guarantee is subordinated to Senior Indebtedness of
such Subsidiary Guarantor, as applicable.
Events of Default and Remedies
Events of Default. Any one of the following events will be an "Event of
Default" under the terms of the indenture:
(1) a default in the payment of any interest on the notes when it
becomes due and payable and the continuance of any such default for a
period of 30 days; or
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(2) a default in the payment of the principal of or premium, if any, on
the notes when due at maturity, upon acceleration, optional redemption,
required repurchase or otherwise; or
(3) the default by Isle of Capri or any Subsidiary Guarantor in the
performance, or breach, of any term, covenant or agreement in the indenture
(other than defaults specified in clause (1) or (2) above or clause (4)
below), and the continuance of such default or breach for a period of 30
days after written notice to Isle of Capri by the trustee or to Isle of
Capri and the trustee by the holders of at least 25% in aggregate principal
amount of the outstanding notes; or
(4) the default by Isle of Capri or any Subsidiary Guarantor in the
performance, or breach, of the covenant described under the subheading
"Certain Covenants--Consolidation, Merger, Conveyance, Transfer or Lease";
the failure of Isle of Capri to make or consummate an Excess Sale/Loss
Proceeds Offer in accordance with the covenant described under the
subheading "Certain Covenants--Limitation on Asset Sales and Events of
Loss"; or the failure of Isle of Capri to make or consummate a Change of
Control Offer in accordance with the provisions described under the
subheading "Redemption and Repurchase Offers--Change of Control Repurchase
Offer"; or
(5) the failure by Isle of Capri or any Restricted Subsidiary, after any
applicable grace period, to make any payment when due of principal of,
premium in respect of or interest on any other Indebtedness, other than
Non-Recourse Indebtedness, in an aggregate principal amount of $10.0
million or more, or the acceleration of the maturity of other Indebtedness,
other than Non-Recourse Indebtedness, in an aggregate principal amount of
$10.0 million or more for any other reason; or
(6) one or more final judgments, orders or decrees for the payment of
money not covered by insurance in excess of $10.0 million, either
individually or in an aggregate amount, shall be entered against Isle of
Capri or any Restricted Subsidiary or any of their respective properties
and not discharged, and there shall have been a period of 60 days during
which a stay of enforcement of such judgment or order, by reason of pending
appeal or otherwise, shall not be in effect; or
(7) certain events of bankruptcy, insolvency or reorganization with
respect to Isle of Capri or any of its Significant Restricted Subsidiaries
shall have occurred; or
(8) the revocation, termination, suspension or cessation to be effective
of any gaming license or other right to conduct lawful gaming operations at
any Casino in any jurisdiction of Isle of Capri or any Subsidiary which
shall continue for more than 90 consecutive days other than the voluntary
relinquishment of any such gaming license or right if, in the reasonable
opinion of Isle of Capri (as evidenced by an Officers' Certificate) such
relinquishment (a) is in the best interest of Isle of Capri and its
Subsidiaries, taken as a whole and (b) does not adversely affect the
holders of the notes in any material respect and (c) is not reasonably
expected to have, nor are the reasons therefor reasonably expected to have,
any material adverse effect on the effectiveness of any gaming license or
similar right, or any right to renewal thereof, or on the prospective
receipt of any such license or right, in each case, in Mississippi,
Louisiana or such other jurisdiction in which any Material Operations of
Isle of Capri or its Subsidiaries are located; or
(9) any of (a) a default or material breach by any Restricted Subsidiary
of its obligations under any Subsidiary Guarantee which continues for a
period of 30 days after written notice to Isle of Capri by the trustee or
to Isle of Capri and the trustee by the holders of at least 25% in
aggregate principal amount of the outstanding notes, (b) the repudiation by
any Restricted Subsidiary of its obligations under the Subsidiary
Guarantees or (c) a judgment or decree by a court or governmental agency of
competent jurisdiction declaring the unenforceability of the payment
obligations under the Subsidiary Guarantee.
Acceleration. If an Event of Default other than an Event of Default
specified in clause (7) above occurs, then the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding notes may, by
written notice, and the trustee upon the request of the holders of not less
than 25% in aggregate principal amount of the outstanding notes is obligated
to, declare the principal of and accrued interest on all the notes to be due
and payable immediately, provided that so long as the Senior Credit Facility is
in effect, such acceleration shall not be effective until the earlier of (1)
five business days following the delivery of notice of acceleration to the
agent under the Senior Credit Facility and (2) the acceleration of any
Indebtedness under the
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Senior Credit Facility. If an Event of Default specified in clause (7) above
occurs, then the principal of and accrued interest on all the notes ipso facto
becomes and is immediately due and payable without any declaration or other act
on the part of the trustee or any holder.
After a declaration of acceleration, the holders of a majority in aggregate
principal amount of outstanding notes may, by notice to the trustee, rescind
such declaration of acceleration if all existing Events of Default have been
cured or waived, other than nonpayment of principal of and accrued interest on
the notes that has become due solely as a result of such acceleration and if
the rescission of acceleration would not conflict with any judgment or decree.
The holders of a majority in aggregate principal amount of the outstanding
notes also have the right to waive past defaults under the indenture except a
default in the payment of the principal of or interest on any note, or in
respect of a covenant or a provision which cannot be modified or amended
without the consent of all holders.
In the event of a declaration of acceleration in respect of the notes
because an Event of Default specified in clause (5) above shall have occurred
and be continuing, such declaration of acceleration shall be automatically
annulled if the Indebtedness that is the subject of such Event of Default has
been discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness, and written notice of such
discharge or rescission, as the case may be, shall have been given to the
trustee by Isle of Capri and countersigned by the holders of such Indebtedness
or a trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the notes, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
No holder of any of the notes has any right to institute any proceeding with
respect to the indenture or any remedy thereunder, unless the holders of at
least 25% in aggregate principal amount of the outstanding notes have made
written request, and offered reasonable indemnity, to the trustee to institute
such proceeding as trustee, the trustee has failed to institute such proceeding
within 15 days after receipt of such notice and the trustee has not within such
15-day period received directions inconsistent with such written request by
holders of a majority in aggregate principal amount of the outstanding notes.
Such limitations do not apply, however, to a suit instituted by a holder of a
note for the enforcement of the payment of the principal of, premium, if any,
or accrued interest on, such note on or after the Stated Maturity thereof.
Defeasance
Isle of Capri may at any time terminate all of its obligations with respect
to the notes ("defeasance"), except for certain obligations, including those
regarding any trust established for a defeasance and obligations to register
the transfer or exchange of the notes, to replace mutilated, destroyed, lost or
stolen notes and to maintain agencies in respect of notes. Isle of Capri may at
any time terminate its obligations under certain covenants set forth in the
indenture, including all of those described under the subheading "Certain
Covenants," and any omission to comply with such obligations will not
constitute a Default or an Event of Default with respect to the notes issued
under the indenture ("covenant defeasance"). In order to exercise either
defeasance or covenant defeasance, Isle of Capri must irrevocably deposit with
the trustee, in trust, for the benefit of the holders of the notes, money or
United States Government Obligations, or a combination thereof, in such amounts
as will be sufficient to pay the principal of and premium, if any, and interest
on the notes to redemption or maturity, together with all other sums payable by
it under the indenture, and comply with certain other conditions, including the
delivery of an opinion as to certain tax matters. Defeasance of the notes will
result in the termination of the obligations of the Subsidiary Guarantors under
their respective Subsidiary Guarantees.
Satisfaction and Discharge
The indenture will be discharged and will cease to be of further effect,
except as to surviving rights or registration of transfer or exchange of notes,
as to all outstanding notes when either
(1) all notes theretofore authenticated and delivered (except lost,
stolen or destroyed notes which have been replaced or paid and notes for
whose payment money has theretofore been deposited in trust or
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segregated and held in trust by Isle of Capri and thereafter repaid to Isle
of Capri or discharged from such trust) have been delivered to the trustee
for cancellation; or
(2)(a) all such notes not theretofore delivered to the trustee for
cancellation have become due and payable and Isle of Capri has irrevocably
deposited or caused to be deposited with the trustee as trust funds in
trust for this purpose an amount of money sufficient to pay and discharge
the entire Indebtedness on the notes not theretofore delivered to the
trustee for cancellation, for principal, premium, if any, and accrued
interest to the date of such deposit;
(b) Isle of Capri has paid all sums payable by it under the indenture;
and
(c) Isle of Capri has delivered irrevocable instructions to the trustee
to apply the deposited money toward the payment of the notes at maturity or
the redemption date, as the case may be. In addition, Isle of Capri must
deliver an Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent to satisfaction and discharge have been complied with.
Amendments and Waivers
From time to time Isle of Capri, when authorized by resolutions of its Board
of Directors, and the trustee may, without the consent of the holders of the
notes, amend, waive or supplement the indenture, the notes or the Subsidiary
Guarantees for certain specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies and making any change that does
not adversely affect the rights of any holder. Other amendments and
modifications of the indenture or the notes may be made by Isle of Capri and
the trustee with the consent of the holders of not less than a majority of the
aggregate principal amount of the outstanding notes; provided that no such
modification or amendment may, without the consent of the holder of each
outstanding new note affected thereby,
(1) reduce the principal amount outstanding of, change the Stated
Maturity of, or alter the redemption provisions of, the notes;
(2) change the currency in which any notes or any premium or the accrued
interest thereon is payable;
(3) reduce the percentage in principal amount outstanding of notes whose
holders must consent to an amendment, supplement or waiver or consent to
take any action under the indenture or the notes;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to the notes;
(5) modify the ability to waive defaults or specified covenants, except
to increase the percentage of notes required to effect a waiver;
(6) reduce the rate of or change the time for, payment of interest on
the notes;
(7) modify or change any provision of the indenture or the related
definitions affecting the subordination or ranking of the notes or any
Subsidiary Guarantee in any manner that materially and adversely affects
the holders; or
(8) amend, change or modify the obligation of Isle of Capri to make and
consummate a Change of Control Offer in the event of a Change of Control or
make and consummate an Excess Sale/Loss Proceeds Offer with respect to any
Asset Sale or Event of Loss or modify any of the provisions or definitions
with respect thereto.
In addition to the foregoing, no modification or amendment may, without the
consent of the holders of at least 66 2/3% of the aggregate principal amount of
the outstanding notes, modify the terms of or release any of the Subsidiary
Guarantees except as provided under the subheading "Subsidiary Guarantees" and
"Restricted and Unrestricted Subsidiaries."
Regarding the Trustee
State Street Bank and Trust Company is the trustee under the indenture.
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Definitions
Set forth below are the meanings of some of the terms that are important in
understanding the above description of the new notes and the terms contained in
the indenture.
"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person becomes a Subsidiary of Isle of Capri or that is assumed in
connection with an Asset Acquisition by such Person, but not Indebtedness
incurred in connection with, or in anticipation of, such Person becoming a
Subsidiary of Isle of Capri or such acquisition.
"Affiliate" of any Person means any other Person that, directly or
indirectly, controls, is controlled by or is under direct or indirect common
control with, such Person and with respect to any natural Person, any other
immediate family member of such natural Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock or other equity interests, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing; provided that, in any event, any Person
that owns directly or indirectly 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person.
"Airplane" means the King Air 200 airplane owned by Isle of Capri on April
23, 1999.
"Asset Acquisition" means (1) any capital contribution (including, without
limitation, transfers of cash or other property to others or payments for
property or services for the account or use of others, or otherwise), or
purchase or acquisition of Capital Stock or other similar ownership or profit
interest, by Isle of Capri or any of its Subsidiaries in any other Person, in
either case pursuant to which such Person shall become a Subsidiary of Isle of
Capri or any of its Subsidiaries or shall be merged with or into Isle of Capri
or any of its Subsidiaries or (2) any acquisition by Isle of Capri or any of
its Subsidiaries of the assets of any Person which constitute substantially all
of an operating unit or business of such Person.
"Assets Held for Sale or Development" means
(1) the FFC Preferred Stock;
(2) the Airplane;
(3) the Real Estate Options;
(4) the Cripple Creek Land; and
(5) the Discontinued Assets.
"Asset Sale" means any direct or indirect sale, conveyance, transfer, lease
(other than an operating lease relating to assets the fair market value of
which, determined in the good faith judgment of the Board of Directors, does
not exceed $2.0 million) assignment, issuance or other disposition (including,
without limitation, by means of a sale-leaseback transaction) by Isle of Capri
or any Restricted Subsidiary to any Person (other than Isle of Capri or a
wholly owned Restricted Subsidiary), in one transaction or a series of related
transactions, of
(1) any Capital Stock of any Restricted Subsidiary or other similar
equity interest; or
(2) any other property or asset of Isle of Capri or any Restricted
Subsidiary other than
(a) Assets Held for Sale or Development;
(b) any Excess Land;
(c) current assets, as defined in accordance with GAAP, in the
ordinary course of business;
(d) damaged, worn out or other obsolete property in the ordinary
course of business if such property is no longer necessary for the
proper conduct of such business;
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(e) property no longer used or useful in the ordinary course of
business or property replaced with similar property of similar utility
in the ordinary course of business;
(f) each other disposition (or series of related dispositions) that
results in Net Cash Proceeds to Isle of Capri and its Restricted
Subsidiaries of less than or equal to $1.0 million; and
(g) an Investment permitted under the covenant described under the
subheading "Certain Covenants--Limitation on Restricted Payments" or a
disposition made in accordance with the covenant described under the
subheading "Certain Covenants--Consolidation, Merger, Conveyance,
Transfer or Lease."
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of Isle of Capri to have been duly adopted by the
Board of Directors of Isle of Capri or any duly authorized committee thereof
and to be in full force and effect on the date of such certification, and
delivered to the trustee.
"Capital Stock" means, with respect to any Person, any and all shares,
interests (including partnership and other equity interests), participations,
rights in or other equivalents (however designated and whether voting or
nonvoting) of, such Person's capital stock, whether outstanding on April 23,
1999 or issued after such date, and any and all rights, warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property, whether real, personal or mixed, that is required to be classified
and accounted for as a capital lease obligation under GAAP and, for the purpose
of the indenture, the amount of such obligation at any date of determination
shall be the capitalized amount thereof at such date, determined in accordance
with GAAP.
"Cash Equivalents" means any of the following, to the extent owned by Isle
of Capri or any of its Restricted Subsidiaries free and clear of all Liens and
having a maturity of not greater than 270 days from the date of acquisition:
(1) any evidence of Indebtedness issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof);
(2) insured certificates of deposit or acceptances of any commercial
bank that is a member of the Federal Reserve System, that issues (or the
parent of which issues) commercial paper rated as described in clause (3)
below and that has combined capital and surplus and undivided profits of
not less than $500.0 million;
(3) commercial paper issued by a corporation (except an Affiliate of
Isle of Capri) organized under the laws of any state of the United States
or the District of Columbia and rated at least A-1 or the then equivalent
grade by Standard & Poor's Corporation or at least Prime-1 or the then
equivalent grade by Moody's Investors Service, Inc.; and
(4) repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States government or any agency or other instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof), provided that the terms of such repurchase and
reverse repurchase agreements comply with the guidelines set forth in the
Federal Financial Agreements of Depository Institutions with Securities
Dealers and Others, as adopted by the Comptroller of the Currency.
"Casino" means a gaming establishment owned by Isle of Capri or a Restricted
Subsidiary and containing at least 600 slot machines and 10,000 square feet of
space dedicated to the operation of games of chance.
"Casino Hotel" means any hotel or similar hospitality facility with at least
100 rooms owned by Isle of Capri or a Restricted Subsidiary and serving a
Casino.
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"Casino Related Facility" means any building, restaurant, theater,
amusement park or other entertainment facility, parking or recreational
vehicle facilities or retail shops located at or adjacent to, and directly
ancillary to, a Casino and used or to be used in connection with such Casino,
other than a Casino Hotel.
"Change of Control" means an event or series of events by which:
(1) any "person" or "group" (as such terms are used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934) (other than the Permitted
Equity Holders) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all
shares that any such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of securities representing the greater of
(a) that percentage of the combined voting power of Isle of Capri's
outstanding Voting Stock held by Permitted Equity Holders (including
shares as to which Isle of Capri or a Permitted Equity Holder holds an
effective proxy to vote); or
(b) 35% or more of the combined voting power of Isle of Capri's
outstanding Voting Stock;
but excluding in each case from the percentage of voting power held by any
group, the voting power of shares owned by the Permitted Equity Holders who
are deemed to be members of the group provided that such Permitted Equity
Holders beneficially own a majority of the voting power of the Voting Stock
held by such group, and at such time the Permitted Equity Holders together
shall fail to beneficially own, directly or indirectly, securities
representing at least the same percentage of voting power of such Voting
Stock as the percentage "beneficially owned" by such person or group; or
(2) during any period of 24 consecutive months, individuals who at the
beginning of such period constituted the Board of Directors (together with
any new or replacement directors whose election by the Board of Directors,
or whose nomination for election by Isle of Capri's shareholders, was
approved by a vote of at least a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors then in office; or
(3) Isle of Capri consolidates with or merges with or into any Person or
conveys, transfers or leases all or substantially all of its assets to any
Person, pursuant to a transaction in which the outstanding Voting Stock of
Isle of Capri is changed into or exchanged for cash, securities or other
property (other than any such transaction where the outstanding Voting
Stock of Isle of Capri is (a) changed only to the extent necessary to
reflect a change in the jurisdiction of incorporation of Isle of Capri or
(b) is exchanged for (i) Voting Stock of the surviving corporation which is
not Disqualified Stock or (ii) cash, securities and other property (other
than Capital Stock of the surviving corporation) in an amount which could
be paid by Isle of Capri as a Restricted Payment as described under the
subheading "Certain Covenants--Limitation on Restricted Payments" (and such
amount shall be treated as a Restricted Payment) and no person or group,
other than Permitted Equity Holders, including any Permitted Equity Holders
who are part of a group where such Permitted Equity Holders beneficially
own a majority of the voting power of the Voting Stock held by such group,
owns immediately after such transaction, directly or indirectly, more than
35% of the combined voting power of the outstanding Voting Stock of the
surviving corporation; or
(4) Isle of Capri is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which complies with
the provisions described under the subheading "Certain Covenants--
Consolidation, Merger, Conveyance, Transfer or Lease."
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Consolidated Cash Flow" means, for any period, the sum of
(1) the Consolidated Net Income of Isle of Capri and its Restricted
Subsidiaries for such period; plus
(2) the sum of the following items to the extent deducted in determining
Consolidated Net Income in accordance with GAAP and without duplication:
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(a) all Consolidated Interest Expense;
(b) Consolidated Non-cash Charges;
(c) Consolidated Income Tax Expense;
(d) all extraordinary losses as determined in accordance with GAAP;
and
(e) any pre-opening expenses.
"Consolidated Coverage Ratio" means the ratio of
(1) Consolidated Cash Flow of Isle of Capri and its Restricted
Subsidiaries for the period (the "Reference Period") consisting of the four
full fiscal quarters for which financial statements are available that
immediately precede the date of the transaction or other circumstances
giving rise to the need to calculate the Consolidated Coverage Ratio (the
"Transaction Date") to
(2) the Consolidated Interest Expense for such Reference Period based
upon the pro forma amount of Indebtedness of Isle of Capri and its
Restricted Subsidiaries outstanding on the Transaction Date and after
giving effect to the transaction in question, unless otherwise provided in
the indenture.
For purposes of this definition, if the Transaction Date occurs before the
date on which Isle of Capri's consolidated financial statements for the four
full fiscal quarters after April 23, 1999 are available, Consolidated Cash Flow
and Consolidated Interest Expense shall be calculated, in the case of Isle of
Capri and its Restricted Subsidiaries, after giving effect on a pro forma basis
as if the notes outstanding on the Transaction Date were issued on the first
day of such four full fiscal quarter period.
In addition, Consolidated Cash Flow and Consolidated Interest Expense shall
be calculated after giving effect on a pro forma basis for the period of such
calculation to
(1) the incurrence or retirement of any Indebtedness of Isle of Capri
and its Restricted Subsidiaries at any time during the Reference Period or
subsequent to such Reference Period but prior to the Transaction Date,
including, without limitation, the incurrence of the Indebtedness giving
rise to the need to make such calculation (unless otherwise provided in the
indenture), as if such Indebtedness were incurred or retired on the first
day of the Reference Period; provided that if Isle of Capri or any of its
Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the above clause shall give effect to the incurrence of such
guaranteed Indebtedness as if Isle of Capri or such Restricted Subsidiary
had directly incurred such guaranteed Indebtedness; and
(2) any Asset Sale, Event of Loss or Asset Acquisition (including,
without limitation, any Asset Acquisition giving rise to the need to make
such calculation as a result of Isle of Capri or any of its Restricted
Subsidiaries (including any Person who becomes a Subsidiary as result of
the Asset Acquisition) incurring Acquired Indebtedness) occurring during
the Reference Period or subsequent to such Reference Period but prior to
the Transaction Date, and any permanent prepayment, repayment, redemption,
purchase or retirement of Indebtedness in connection with such Asset Sale,
Event of Loss, Asset Acquisition, as if such Asset Sale, Event of Loss or
Asset Acquisition and/or retirement occurred on the first day of the
Reference Period.
Furthermore, in calculating Consolidated Interest Expense for purposes of
this "Consolidated Coverage Ratio," interest on Indebtedness determined on a
fluctuating basis shall be deemed to accrue at the rate in effect on the
Transaction Date for such entire period.
"Consolidated Income Tax Expense" means, as applied to any Person for any
period, federal, state, local and foreign income taxes (including franchise
taxes imposed in lieu of or as additional income tax) of such Person and its
Restricted Subsidiaries for such period, determined in accordance with GAAP;
provided, that for purposes hereof, "income taxes" shall specifically exclude
any taxes paid to or imposed by a Gaming Authority.
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"Consolidated Interest Expense" means as applied to any Person for any
period the sum of the following items, without duplication:
(1) the aggregate amount of interest recognized by such Person and its
Restricted Subsidiaries in respect of their Consolidated Indebtedness,
including all interest capitalized by such Person and its Restricted
Subsidiaries during such period and all commissions, discounts and other
similar fees and charges owed by such Person or any of its Restricted
Subsidiaries for letters of credit and bankers' acceptance financing and
the net costs associated with Interest Rate and Currency Protection
Obligations of such Person and its Restricted Subsidiaries, but excluding
other financing costs, amortization of deferred financing cost and debt
discount or premium;
(2) the aggregate amount of the interest component of rentals in respect
of Capitalized Lease Obligations recognized by such Person and its
Restricted Subsidiaries;
(3) to the extent any Indebtedness of any other Person is guaranteed by
such Person or any of its Restricted Subsidiaries, the aggregate amount of
interest paid or accrued by such other Person during such period
attributable to any such guaranteed Indebtedness;
(4) the interest portion of any deferred payment obligation;
(5) an amount equal to 1/3 of the base rental expense (i.e., not any
rent expense paid as a percentage of revenues) attributable to such Person
and its Restricted Subsidiaries; and
(6) the amount of dividends payable by such Person and its Restricted
Subsidiaries in respect of Disqualified Stock (other than such dividends
payable to such Restricted Subsidiaries).
"Consolidated Net Income" means, for any period, the aggregate of the
consolidated Net Income or net loss of Isle of Capri and its Restricted
Subsidiaries determined in accordance with GAAP, less (to the extent included
in such consolidated Net Income)
(1) the Net Income or net loss of any Person (the "other Person")
(a) other than a Restricted Subsidiary, except in each such case
such Net Income shall be included to the extent of the amount of
management fees or cash dividends or other cash distributions in
respect of Capital Stock or other interest owned actually paid (out of
funds legally available therefor) to and received by Isle of Capri or
its Restricted Subsidiaries, other than dividends, if applicable, or
other distributions to pay obligations of or with respect to such
Unrestricted Subsidiary, such as income taxes; or
(b) in which Isle of Capri or any of its Restricted Subsidiaries has
a joint interest with a third party (which interest of a third party
causes the Net Income or net loss of such other Person not to be
consolidated into the Net Income or net loss of Isle of Capri and its
Restricted Subsidiaries in accordance with GAAP), except in each such
case such Net Income or net loss shall be included to the extent of the
amount of management fees or cash dividends or other cash distributions
in respect of Capital Stock or other interest owned actually paid (out
of funds legally available therefor) to and received by Isle of Capri
or its Restricted Subsidiaries, other than dividends, if applicable, or
other distributions to pay obligations of or with respect to such
Unrestricted Subsidiary, such as income taxes;
(2) items classified as extraordinary, other than the tax benefit of the
utilization of net operating loss carry forwards or alternative minimum tax
credits;
(3) except to the extent includable in clause (1) above, the Net Income
or loss of any other Person accrued or attributable to any period before
the date on which it becomes a Restricted Subsidiary or is merged into or
consolidated with Isle of Capri or any of its Restricted Subsidiaries or
such other Person's property or Capital Stock (or a portion thereof) is
acquired by Isle of Capri or any of its Restricted Subsidiaries; and
(4) the Net Income of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by such Restricted
Subsidiary of that income is not at the time permitted, directly or
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indirectly, by operation of the terms of its charter or any agreement,
instrument, judgement, decree, order, statute, law, rule or governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" means, at any date of determination, the sum of
(1) the consolidated equity of the common stockholders of such Person
and its Restricted Subsidiaries on such date plus
(2) the respective amounts reported on such Person's most recent balance
sheet with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only
to the extent of any cash received by such Person upon issuance of such
preferred stock less
(a) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such
business) subsequent to the date of the indenture in the book value of
any asset owned by such Person or a Restricted Subsidiary of such
Person;
(b) all investments in Persons that are not Restricted Subsidiaries;
and
(c) all unamortized debt discount and expense and unamortized
deferred charges, all of the foregoing determined in accordance with
GAAP.
"Consolidated Non-cash Charges" of any Person means, for any period, the
aggregate depreciation, amortization and other non-cash charges of such Person
and its Restricted Subsidiaries on a consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which
requires an accrual or reserve for cash charges for any future period).
"Credit Facility" means one or more debt or commercial paper facilities
with banks or other institutional lenders (including the Senior Credit
Facility) providing for revolving credit loans, term loans or letters of
credit, in each case together with any amendments, supplements, modifications
(including by any extension of the maturity thereof), substitutions,
refinancings or replacements thereof by a lender or a syndicate of lenders in
one or more successive transactions (including any such transaction that
changes the amount available thereunder, replaces such agreement or document
or provides for other agents or lenders).
"Cripple Creek Land" means the real estate owned or leased by Isle of Capri
in Cripple Creek, Colorado.
"Default" means any Event of Default or an event that would constitute an
Event of Default but for the requirement that notice be given or time elapse
or both.
"Discontinued Assets" means the following assets held for sale by Isle of
Capri as of April 23, 1999:
(1) the Emerald Lady riverboat and the Diamond Lady riverboat;
(2) the Lucky Seven barge and one other barge (vessel number 511360);
and
(3) gaming equipment held for sale.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
or other similar ownership or profit interest that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
exchangeable for Indebtedness, or is redeemable at the option of the holder
thereof, in whole or in part, on or before the Maturity Date of the notes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Loss" means, with respect to any property or asset (tangible or
intangible, real or personal) that has a Fair Market Value of $5.0 million or
more, any of the following:
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(1) any loss, destruction or damage of such property or asset;
(2) any institution of any proceedings for the condemnation or seizure
of such property or asset or for the exercise of any right of eminent
domain or navigational servitude; or
(3) any actual condemnation, seizure or taking, by exercise of the power
of eminent domain or otherwise, of such property or asset, or confiscation
of such property or asset or the requisition of the use of such property or
asset.
"Excess Land" means the following real and personal property:
(1) approximately 12 acres of land owned by Isle of Capri or its
Restricted Subsidiaries as of April 23, 1999 adjacent to the Isle-Bossier
City; and
(2) approximately 7 acres of land owned by the U.S. Department of
Housing and Urban Development as of April 23, 1999 in proximity to the
Isle-Bossier City, in the event such property is acquired by Isle of Capri
or its Restricted Subsidiaries.
"Excess Sale/Loss Proceeds" and "Excess Sale/Loss Proceeds Offer" have the
meanings set forth in the covenant described under the subheading "Certain
Covenants--Limitation on Asset Sales and Events of Loss."
"Fair Market Value" or "fair value" means, with respect to any asset or
property, the price which could be reasonably expected to be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Unless otherwise specified by the indenture, Fair
Market Value shall be determined by the Board of Directors of Isle of Capri
acting in good faith and shall be evidenced by a Board Resolution delivered to
the trustee.
"FFC Preferred Stock" means the shares of preferred stock, $100 par value,
of Freedom Financial Corporation owned by Isle of Capri.
"FF&E" means furniture, fixtures and equipment used in the ordinary course
of business in the operation of a Permitted Line of Business.
"FF&E Financing" means Indebtedness, the proceeds of which will be used
solely to finance or refinance the acquisition or lease by Isle of Capri or a
Restricted Subsidiary of FF&E.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board that are applicable from time to time.
"Gaming Authority" means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United
States federal or any foreign government, any state, province or any city or
other political subdivision or otherwise and whether now or hereafter in
existence, or any officer or official thereof, with authority to regulate any
gaming operation (or proposed gaming operation) owned, managed, or operated by
Isle of Capri or any of its Subsidiaries.
"Indebtedness" of any Person means
(1) any liability, contingent or otherwise, of such Person
(a) for borrowed money, whether or not the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof;
(b) evidenced by a note, bond, debenture or similar instrument,
letters of credit, bankers' acceptances or other similar facilities,
other than a trade payable or other than a current liability incurred
in the ordinary course of business; or
(c) for the payment of money relating to a Capitalized Lease
Obligation or other obligation relating to the deferred purchase price
of property or services (including a purchase money obligation but not
including any docking fees payable to Louisiana Downs, Inc. or
guarantees thereof);
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(2) any liability of others of the kind described in the preceding
clause (1) which such Person has guaranteed or which is otherwise its legal
liability, including, without limitation, any obligation
(a) to pay or purchase such liability;
(b) to supply funds to or in any other manner invest in the debtor
(including an agreement to pay for property or services irrespective of
whether such property is received or such services are rendered); and
(c) to purchase or lease (other than pursuant to an operating lease
of hotel rooms or similar lodging facilities entered into for the
principal purpose of providing lodging at or near the site of a Casino,
which facilities are reasonably expected to be beneficial to Isle of
Capri's operating results) property or to purchase services;
in each such case primarily for the purpose of enabling a debtor to make a
payment of such Indebtedness or to assure the holder or such Indebtedness
against loss;
(3) any obligation secured by a Lien to which the property or assets of
such Person are subject, whether or not the obligations secured thereby
shall have been assumed by or shall otherwise be such Person's legal
liability;
(4) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Capital Stock of or other
ownership or profit interest in such Person or any of its Affiliates or any
warrants, rights or options to acquire such Capital Stock, valued, in the
case of Disqualified Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
(5) all Interest Rate and Currency Protection Obligations; and
(6) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses.
"Interest Rate and Currency Protection Obligations" means the obligations of
any Person pursuant to any interest rate swap, cap or collar agreement,
interest rate future or option contract, currency swap agreement, currency
future or option contract and other similar agreement designed to hedge against
fluctuations in interest rates or foreign exchange rates.
"Investment" in any Person means any direct or indirect loan, advance,
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others or otherwise), or purchase or
acquisition of Capital Stock, warrants, rights, options, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, such
Person or Indebtedness of any other Person secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness. The amount of any Investment shall
be the original cost of such Investment, plus the cost of all additions
thereto, and minus the amount of any portion of such Investment repaid to the
Person making such Investment in cash as a repayment of principal or a return
of capital, as the case may be, but without any other adjustments for increases
or decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment. In determining the amount of any Investment involving a
transfer of any property other than cash, such property shall be valued at its
fair value at the time of such transfer, as determined in good faith by the
Board of Directors of the Person making such transfer, whose determination will
be conclusive absent manifest error.
"Isle-Biloxi" means Isle of Capri Casino located in Biloxi, Mississippi.
"Isle-Bossier City" means Isle of Capri Casino located in Bossier City,
Louisiana.
"Isle-Lake Charles" means Isle of Capri Casino located in Lake Charles,
Louisiana.
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"Isle-Tunica" means Isle of Capri Casino that is being developed and will
be located in Tunica, Mississippi.
"Isle-Vicksburg" means Isle of Capri Casino located in Vicksburg,
Mississippi.
"Lien" means any mortgage, lien (statutory or other), pledge, security
interest, encumbrance, claim, hypothecation, assignment for security, deposit
arrangement or preference or other security agreement of any kind or nature
whatsoever. For purposes of the indenture, a Person is deemed to own subject
to a Lien any property which the Person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Person.
"Marketable Securities" means Cash Equivalents or any fund investing
primarily in Cash Equivalents.
"Material Operations" means assets or operations of Isle of Capri or its
Subsidiaries that (1) exceed 5% of the assets of Isle of Capri and its
Consolidated Subsidiaries or (2) contributed more than 5% of the income from
continuing operations of Isle of Capri and its Consolidated Subsidiaries
(before income taxes, extraordinary items and intercompany management or
similar fees) for the most recently completed four fiscal quarters of Isle of
Capri for which financial statements are available.
"Maturity" or "Maturity Date" when used with respect to any note, means the
date specified in such note as the fixed date on which the last installment of
principal of such note is due and payable.
"Net Cash Proceeds" means, with respect to any Asset Sale, Event of Loss,
issuance or sale by Isle of Capri of its Capital Stock or incurrence of
Indebtedness, as the case may be, the proceeds thereof in the form of cash or
Cash Equivalents received by Isle of Capri or any of its Restricted
Subsidiaries (whether as initial consideration, through the payment or
disposition of deferred compensation or the release of reserves), after
deducting therefrom (without duplication) (1) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees, finders
fees and other similar fees and expenses incurred in connection with such
Asset Sale or Event of Loss, (2) provisions for all taxes payable as a result
of such Asset Sale or Event of Loss, (3) payments made to retire and
permanently reduce any commitment with respect to any Indebtedness (other than
payments on the notes) secured by the assets subject to such Asset Sale or
Event of Loss to the extent required pursuant to the terms of such
Indebtedness and (4) appropriate amounts to be provided by Isle of Capri or
any of its Restricted Subsidiaries, as the case may be, as a reserve in
accordance with GAAP, against any liabilities associated with such Asset Sale
or Event of Loss and retained by Isle of Capri or any of its Restricted
Subsidiaries, as the case may be, after such Asset Sale or Event of Loss,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale or Event
of Loss, in each case to the extent, but only to the extent, that the amounts
so deducted are, at the time of receipt of such cash or Cash Equivalents,
actually paid to a Person that is not an Affiliate of Isle of Capri or, in the
case of reserves, are actually established and, in each case, are properly
attributable to such Asset Sale or Event of Loss.
"Net Income" means, with respect to any Person for any period, the net
income or loss of such Person determined in accordance with GAAP.
"Non-Recourse Indebtedness" means Indebtedness (1) as to which none of Isle
of Capri or any of its Restricted Subsidiaries provides any credit support or
is directly or indirectly liable for the payment of principal or interest
thereof and a default with respect to which would not entitle any party to
cause any other Indebtedness of Isle of Capri or a Restricted Subsidiary to be
accelerated or (2) incurred by Isle of Capri or a Restricted Subsidiary to
purchase one or more assets from the lending source, provided that the
lender's only remedy against the obligor in the event of a default with
respect to such Indebtedness, whether as a result of the failure to pay
principal or interest when due or any other reason, is limited to repossession
of such assets purchased.
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"Permitted Equity Holders" means Bernard Goldstein, Irene Goldstein and
their lineal descendants (including adopted children and their lineal
descendants) and any entity the equity interests of which are owned by only
such Persons or which was established for the exclusive benefit of, or the
estate of, any of the foregoing.
"Permitted Investments" means:
(1) Investments in Marketable Securities;
(2) loans or advances to employees not to exceed an aggregate of
$250,000 in any fiscal year of Isle of Capri and $1.0 million in the
aggregate at any one time outstanding;
(3) Investments in Isle of Capri Black Hawk, L.L.C. by Isle of Capri or
a Restricted Subsidiary in an aggregate amount not to exceed the sum of
$10.0 million; and
(4) Investments in a Permitted Line of Business by Isle of Capri or a
Restricted Subsidiary made in one or more Persons in an aggregate amount
not to exceed the sum of (a) $25.0 million and (b) up to $5.0 million of
the amount permitted to be invested pursuant to clause (3) above that is
not so invested.
"Permitted Liens" means:
(1) Liens on property acquired by Isle of Capri or any Restricted
Subsidiary (including an indirect acquisition of property by way of a
merger of a Person with or into Isle of Capri or any Restricted Subsidiary
or the acquisition of a Person), provided that such Liens were in existence
prior to the contemplation of such acquisition, merger or consolidation,
and were not created in connection therewith or in anticipation thereof,
and provided that such Liens do not extend to any additional property or
assets of Isle of Capri or any Restricted Subsidiary;
(2) statutory Liens (other than those arising under ERISA) to secure the
performance of obligations, surety or appeal bonds, performance bonds or
other obligations of a like nature, maritime Liens for crew wages, salvage,
suppliers and providers of services incurred in the ordinary course of
business (exclusive of obligations in respect of the payment of borrowed
money), or for taxes, assessments or governmental charges or claims,
provided that in each case the obligations are not yet delinquent or are
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and any reserve or other adequate
provision as shall be required in conformity with GAAP shall have been made
therefor;
(3) leases or subleases granted to others not interfering in any
material respect with the business of Isle of Capri or any Restricted
Subsidiary;
(4) any charter of a Vessel, provided that (a) in the good faith
judgment of the Board of Directors of Isle of Capri, such Vessel is not
necessary for the conduct of the business of Isle of Capri or any of its
Restricted Subsidiaries as conducted immediately prior thereto; (b) the
terms of the charter are commercially reasonable and represent the Fair
Market Value of the charter and (c) the Person chartering the assets agrees
to maintain the Vessel and evidences such agreement by delivering such an
undertaking to the trustee;
(5) with respect to the property involved, easements, rights-of-way,
navigational servitudes, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances which do not interfere in
any material respect with the ordinary conduct of business of Isle of Capri
and its Subsidiaries as now conducted or as contemplated in the indenture;
(6) Liens arising in the ordinary course of business in connection with
workers' compensation, unemployment insurance or other types of social
security (other than those arising under ERISA);
(7) any interest or title of a lessor in property subject to any
Capitalized Lease Obligation or an operating lease;
(8) Liens arising from the filing of Uniform Commercial Code financing
statements with respect to leases;
(9) Liens arising from any final judgment or order not constituting an
Event of Default;
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(10) Liens on documents or property under or in connection with letters
of credit in the ordinary course of business, if and to the extent that the
related Indebtedness is permitted under clause (1)(e) of the covenant
described under the subheading "Certain Covenants--Limitation on
Indebtedness"; and
(11) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods in the ordinary
course of business.
"Permitted Line of Business" means, with respect to any Person, any casino
gaming business of such Person or any business that is related to, ancillary to
or supportive of, connected with or arising out of the gaming business of such
Person (including, without limitation, developing and operating lodging,
dining, amusement, sports or entertainment facilities, transportation services
or other related activities or enterprises and any additions or improvements
thereto).
"Permitted Related Investment" means the acquisition of property or assets
by a Person to be used in connection with a Permitted Line of Business of such
Person.
"Permitted Vessel Liens" means a Lien on a Vessel to secure FF&E Financing
or Capitalized Lease Obligations where the holder or holders (or an agent,
trustee or other representative for such holder or holders):
(1) agrees to release such Lien upon satisfaction of such FF&E
Financing;
(2) agrees to release such Lien upon payment or promise of payment to
such holder or holders (or such representative) of that portion of the
proceeds of the sale of such Vessel attributable to the related FF&E; and
(3) acknowledges that such Lien does not create rights on the hull and
other equipment constituting such Vessel (other than the related FF&E).
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, limited liability company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Qualified Public Equity Offering" means a firm commitment underwritten
public offering of Common Stock of Isle of Capri for which Isle of Capri
receives net proceeds of at least $30.0 million and after which the Common
Stock is traded on a national securities exchange or quoted on the NASDAQ Stock
Market.
"Real Estate Options" means:
(1) all options held by Isle of Capri or its Restricted Subsidiaries,
directly or indirectly, at April 23, 1999 for an amount, in each case, not
exceeding $1.0 million to purchase or lease land; and
(2) all options acquired by Isle of Capri, directly or indirectly, after
April 23, 1999 for an amount, in each case, not exceeding $2.0 million, to
purchase or lease land.
"Redeemable Capital Stock" means any class or series of Capital Stock to the
extent that, either by its terms, by the terms of any security into which it is
convertible or exchangeable, or by contract or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the notes or is redeemable at the option
of the holder thereof at any time prior to such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
Stated Maturity.
"Restricted Payment" means any of:
(1) the declaration or payment of any dividend or any other distribution
on Capital Stock of Isle of Capri or any Subsidiary or any payment made to
the direct or indirect holders (in their capacities as such) of Capital
Stock of Isle of Capri or any Subsidiary, other than (a) dividends or
distributions payable solely in Capital Stock (other than Disqualified
Stock) otherwise permitted by the indenture and (b) in the case of a
Subsidiary, dividends or distributions payable to Isle of Capri or to a
Restricted Subsidiary of Isle of Capri;
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(2) the purchase, defeasance, redemption or other acquisition or
retirement for value of any Capital Stock of Isle of Capri or any
Subsidiary, other than Capital Stock of such Subsidiary held by Isle of
Capri or any of its Restricted Subsidiaries;
(3) the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement for value, before
any scheduled maturity, scheduled repayment or scheduled sinking fund
payment of, any Indebtedness which is subordinated in any manner in right
of payment to the notes, other than Indebtedness acquired in anticipation
of satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition; and
(4) the making of any Investment or guarantee of any Investment by Isle
of Capri or any Subsidiary in any Person other than
(a) in a Person that would be, directly or indirectly, a Restricted
Subsidiary of Isle of Capri immediately after giving effect to such
Investment; or
(b) under a plan of reorganization or similar proceeding under
applicable bankruptcy law or in connection with a workout involving
creditors of such Person in exchange for Indebtedness owing by such
Person that did not violate the limitations set forth under the
subheading "Certain Covenants--Limitation on Restricted Payments."
"Restricted Subsidiary" means any Subsidiary of Isle of Capri that has not
been designated as an Unrestricted Subsidiary pursuant to and in compliance
with the provisions described under "Restricted and Unrestricted Subsidiaries,"
or a Subsidiary that has been designated as a Restricted Subsidiary pursuant to
and in compliance with the provisions described under "Restricted and
Unrestricted Subsidiaries."
"Senior Credit Facility" means the Credit Agreement, dated as of April 23,
1999, among Isle of Capri, the lenders listed therein and Canadian Imperial
Bank of Commerce, as Administrative Agent and Issuing Lender, including any
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended (including any amendment and
restatement thereof), modified, extended, deferred, refunded, substituted,
replaced or refinanced from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder or adding Subsidiaries
of Isle of Capri as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, creditor,
lender or group of creditors or lenders.
"Senior Indebtedness" means (1) the principal of, premium, if any, and
interest (including post-petition interest) on, and all fees, costs, expenses
and other amounts payable with respect to the Indebtedness under the Senior
Credit Facility and (2) the principal of, premium, if any, and interest on any
Indebtedness of Isle of Capri or the Subsidiary Guarantors, whether outstanding
on April 23, 1999 or thereafter created, incurred or assumed, unless, in the
case of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to any Indebtedness of
Isle of Capri or the Subsidiary Guarantors, as applicable. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include, to the extent constituting
Indebtedness,
(1) Indebtedness evidenced by the notes or the Subsidiary Guarantees;
(2) Indebtedness that is subordinate or junior in right of payment to
any Indebtedness of Isle of Capri or the Subsidiary Guarantors;
(3) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, U.S. Code, is without recourse
to Isle of Capri or the Subsidiary Guarantors;
(4) Indebtedness which is represented by Redeemable Capital Stock;
(5) Indebtedness for goods, materials or services purchased in the
ordinary course of business or Indebtedness consisting of trade payables or
other current liabilities other than any current liabilities owing
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under the Senior Credit Facility or the current portion of any long-term
Indebtedness which would constitute Senior Indebtedness but for the
operation of this clause (5);
(6) Indebtedness of or amounts owed by Isle of Capri or the Subsidiary
Guarantors for compensation to employees or for services rendered to Isle
of Capri or the Subsidiary Guarantors;
(7) Indebtedness of or amounts owed by Isle of Capri or a Restricted
Subsidiary to Isle of Capri or another Restricted Subsidiary;
(8) any liability for federal, state, local or other taxes owed or owing
by Isle of Capri or the Subsidiary Guarantors;
(9) Indebtedness of Isle of Capri or a Subsidiary Guarantor to any other
Subsidiary of Isle of Capri; and
(10) that portion of any Indebtedness which at the time of issuance is
issued in violation of the indenture.
"Significant Restricted Subsidiary" means any Restricted Subsidiary that is
a guarantor of Isle of Capri's obligations under the Senior Credit Facility or
any other Credit Facility.
"Stated Maturity" means, with respect to any security, the date specified in
such security as the fixed date on which the principal of such security is due
and payable, including pursuant to any mandatory redemption provisions but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof.
"Subordinated Indebtedness" means Indebtedness that is subordinated in right
of payment to the notes in all respects, matures at a date later than the
Maturity Date of the notes and has an average life longer than that applicable
to the notes.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (1) the issued
and outstanding Capital Stock having ordinary voting power to elect a majority
of the Board of Directors or similar governing body of such corporation or
other entity (irrespective of whether at the time Capital Stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (2) the interest in the capital or profits of
such partnership or joint venture or (3) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such
Person.
"Subsidiary Guarantees" means the guarantees of the Subsidiary Guarantors
with respect to Isle of Capri's obligations under the notes and the indenture.
"Subsidiary Guarantors" means each existing and future Significant
Restricted Subsidiary of Isle of Capri and any other Subsidiary that executes a
Subsidiary Guarantee.
"United States Government Obligations" means securities that are
(1) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged; or
(2) obligations of a Person, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America.
"Unrestricted Subsidiary" means any Subsidiary of Isle of Capri that
(1) Isle of Capri has designated, pursuant to provisions described under
the subheading "Restricted and Unrestricted Subsidiaries" as an
Unrestricted Subsidiary and that has not been redesignated as a Restricted
Subsidiary pursuant to such paragraph; and
(2) any Subsidiary of any such Unrestricted Subsidiary.
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"Vessel" means any riverboat or barge, whether now owned or hereafter
acquired by Isle of Capri or any Restricted Subsidiary, useful for gaming,
administrative, entertainment or any other purpose whatsoever.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or Persons
performing similar functions) of such Person, whether at all times or only as
long as no senior class of securities has such voting power by reason of any
contingency.
"wholly owned" with respect to a Subsidiary of any Person means (1) with
respect to a Subsidiary that is a partnership, limited liability company or
similar entity, a Subsidiary whose capital or other equity interest is 99% or
greater beneficially owned by such Person and (2) with respect to a Subsidiary
that is other than a partnership, limited liability company or similar entity,
a Subsidiary whose capital stock or other equity interest is 100% beneficially
owned by such Person.
Book-Entry Notes
The old notes offered and sold to qualified institutional buyers (as defined
under Rule 144A of the Securities Act of 1933) or "QIBs" were each registered
in book-entry form and are represented by two global notes in fully registered
form without interest coupons. These global notes were deposited with the
trustee as custodian for The Depository Trust Company or "DTC" and registered
in the name of Cede & Co.
The old notes offered and sold to persons outside the United States who
received such old notes pursuant to sales in accordance with Regulation S under
the Securities Act of 1933 were initially represented by a global note in fully
registered form without interest coupons. This global note was deposited with
the trustee as custodian for DTC and registered in the name of Cede & Co.
Before the expiration of the "40-day restricted period" (within the meaning of
Rule 903 of Regulation S), transfers of interest in this global note were only
effected through records maintained by DTC, Cedel Bank, societe anonyme
("CEDEL") or the Euroclear System ("Euroclear").
Except as described below, the new notes will be represented by one or more
global notes. We will deposit the global notes representing the new notes with
DTC. The global notes will be registered in the name of DTC or its nominee.
Except as provided below, the new notes will not be issued in definitive form.
One certificate will be issued in the principal amount of $200 million and one
certificate will be issued in the principal amount of $190 million.
Holders of new notes who elect to take physical delivery of their
certificates instead of holding their interest through the global notes will be
issued a certificated new note in registered form. Upon the transfer of any
certificated new note initially issued to such holders, such certificated new
note will, unless the transferee requests otherwise or the global notes have
previously been exchanged in whole for certificated new notes, be exchanged for
an interest in the global notes representing the new notes.
The Depository Trust Company is a limited-purpose trust company organized
under the New York Banking Law. It is a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants (including CEDEL and Euroclear) deposit with it. DTC also
facilitates the settlement among participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic book-entry
changes in participants' accounts, which eliminates the need for physical
movement of certificates. Direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and other organizations.
DTC is owned by a number of its direct participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to DTC's book entry system is also available
to others, such as securities brokers and dealers, banks and trust companies
that clear through or maintain a custodial relationship with a direct
participant, either directly or indirectly. These other entities are referred
to
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as "indirect participants." The rules applicable to DTC and its participants
are on file with the Securities and Exchange Commission.
Purchases of new notes represented by a global note under DTC's system must
be made by or through direct participants. Direct participants will receive a
credit for the new notes on DTC's records. The ownership interest of each
actual purchaser of each new note will be recorded on the direct and indirect
participants' records. Each actual purchaser is referred to as a "beneficial
owner." Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction and periodic statements of
their holdings from the direct or indirect participant through which the
beneficial owner entered into the transaction.
Transfers of ownership interests in the new notes will be accomplished by
entries made on the books of participants acting on behalf of beneficial
owners. Beneficial owners will not receive certificates representing their
ownership interests in the new notes, except if use of the book-entry system
for the new notes is discontinued. All beneficial ownership interests in the
global notes, including those held through Euroclear or CEDEL, will be subject
to the procedures and requirements of DTC and, where applicable, Euroclear or
CEDEL.
The laws of some states require that certain purchasers of notes take
physical delivery of securities in definitive form. These limits and laws may
impair the ability to transfer beneficial interests in the global notes.
So long as the depository for the global notes, or its nominee, is the
registered owner of the global notes, it will be considered the sole owner or
holder of the notes represented by the global notes. Except as provided below,
owners of beneficial interests in the new notes represented by the global notes
will not be entitled to have their new notes represented by such global notes
registered in their names, will not receive or be entitled to receive physical
delivery of the new notes in definitive form and will not be considered the
owners or holders of the notes under the indenture.
To facilitate subsequent transfers, all notes deposited by participants with
DTC are registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of the new notes with DTC and their registration in the name of Cede &
Co. cause no change in beneficial ownership. DTC has no knowledge of the actual
beneficial owners of the new note. DTC's records reflect only the identity of
the direct participants to whose accounts the notes are credited, which may or
may not be the beneficial owners. The participants will remain responsible for
keeping account of their holdings on behalf of their customers. Conveyance of
notices and other communications by DTC to direct participants, by direct
participants to indirect participants and by direct participants and indirect
participants to beneficial owners will be governed by arrangements among them.
Those arrangements are subject to any applicable statutory or regulatory
requirements.
Neither DTC nor Cede & Co. will consent or vote with respect to the new
notes. Under its usual procedures, DTC mails an omnibus proxy to us as soon as
possible after the record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to direct participants whose accounts the new notes
are credited on the record date. Those direct participants are identified in a
listing attached to the omnibus proxy.
We will make payments of principal, any premium and interest on the global
notes through the trustee or a paying agent to the depository, as the
registered owner of the global notes. None of the trustee, the paying agent or
our company will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the global notes or for maintaining, supervising or reviewing any
records relating to beneficial ownership interests.
DTC has advised us that, upon its receipt of any payment in respect of a
global note, it will credit direct participants' accounts on the payable date
in accordance with their respective holdings shown on DTC's records unless it
has reason to believe that it will not receive payment on the payable date.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices, as is the
59
<PAGE>
case with notes held for the accounts of customers in bearer form or registered
in "street name." These payments will be the responsibility of the participant
and not of DTC, the paying agent or our company, subject to any applicable
statutory or regulatory requirements.
It is our responsibility or the paying agent's responsibility to make
payments to DTC. It is the responsibility of DTC to disburse the payments to
direct participants. It is the responsibility of direct and indirect
participants to disburse the payments to beneficial owners.
Transfer between participants in DTC will be effected in the ordinary way in
accordance with DTC rules. If a holder requires physical delivery of
certificated notes for any reason, including to sell notes to persons in states
which require physical delivery of such notes or to pledge such notes, the
holder must transfer its interest in the global note in accordance with the
normal procedures of DTC and the procedures set forth in the indenture.
Transfers between participants in Euroclear and CEDEL will be effected in the
ordinary way in accordance with their respective rules and operating
procedures.
Cross-market transfers between DTC, on the one hand, and directly or
indirectly through Euroclear or CEDEL participants, on the other, will be
effected by DTC in accordance with DTC rules on behalf of Euroclear or CEDEL,
as the case may be, by its respective depository. However, such cross-market
transactions will require delivery of instructions to Euroclear or CEDEL, as
the case may be, by the counterparty in such system in accordance with its
rules and procedures and within its established deadlines (Brussels time).
Euroclear or CEDEL, as the case may be, will, if the transaction meets its
settlement requirements, deliver instructions to its respective depository to
take action to effect final settlement on its behalf by delivering or receiving
interests in the global note in DTC and making or receiving payment in
accordance with normal procedures for same-day funds settlements applicable to
DTC. CEDEL participants and Euroclear participants may not deliver instructions
directly to the depositories for CEDEL or Euroclear.
Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a global note from a DTC
participant will be credited during the securities settlement processing day
(which must be a business day for Euroclear and CEDEL) immediately following
the DTC settlement date. The credit of any transactions in interests in a
global note settled during such processing day will be reported to the relevant
Euroclear or CEDEL participant on such day. Cash received in Euroclear or CEDEL
as a result of sales of interests in a global note by or through a Euroclear or
CEDEL participant to a DTC participant will be received for value on the DTC
settlement date but will be available in the relevant Euroclear or CEDEL cash
account only as of the business day following DTC settlement date.
Subject to certain conditions, any person having a beneficial interest in a
global note may, upon request to the trustee, exchange its beneficial interest
for certificated notes. Upon any such issuance of certificated notes, the
trustee is required to register such certificated notes in the name of, and
cause the same to be delivered to, the person or persons who requested
certificated notes or its nominee. In addition, if DTC is at any time unwilling
or unable to continue as a depositary for the global notes and a successor
depositary is not appointed by us within 90 days, we will issue certificated
notes in exchange for the global notes. If there is an event of default under
the indenture, DTC will exchange the global notes for certificated notes, which
it will distribute to its participants.
DTC has informed us that is management is aware that some computer
applications, systems and the like for processing data may encounter "Year 2000
problems." DTC has informed us that it has informed its participants and other
members of the financial community that it has developed and is implementing a
program so that DTC's systems, as they relate to the timely payments of
distributions, including principal and income payments, to securityholders,
book-entry deliveries and settlement of trades, continue to function
appropriately. According to DTC, this program includes a complete technical
assessment and a complete remediation plan. DTC has also informed us that its
plan includes a testing phase, which is expected to be completed within
appropriate time frames.
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<PAGE>
DTC has further informed us that its ability to perform properly its
services is also dependent upon other parties, including issuers and their
agents, and third party vendors that license software and hardware and provide
information or services, including telecommunications and electrical utility
services. DTC has informed us that it is contacting, and will continue to
contact, third party vendors that provide services to impress upon them the
importance of those services being Year 2000 compliant and determine the extent
of their efforts for Year 2000 remediation and testing of their services. In
addition, DTC has informed us that it is in the process of developing
contingency plans it deems appropriate.
According to DTC, the above information has been provided to its
participants and other members of the financial community for informational
purposes only and is not intended to serve as a representation, warranty or
contract modification of any kind.
The information in this section concerning DTC and its book-entry system has
been obtained from sources that we believe to be reliable. However, we take no
responsibility for the accuracy of that information.
SPECIFIC FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the material federal income tax
considerations of the issuance of the new notes and the exchange offer. This
summary does not discuss all aspects of federal income taxation that may be
relevant to particular holders of new notes, especially in light of a holder's
personal investment circumstances, or to certain types of holders subject to
special treatment under the federal income tax laws (for example, life
insurance companies, tax-exempt organizations and foreign corporations and
individuals who are not citizens or residents of the United States) and does
not discuss any aspects of state, local or foreign taxation. This discussion is
limited to those holders who will hold the new notes as "capital assets"
(generally, property held for investment) within the meaning of Section 1221 of
the Internal Revenue Code of 1986, as amended (the "Code").
This summary is based upon laws, regulations, rulings and decisions now in
effect and upon proposed regulations, all of which are subject to change,
possibly with retroactive effect, by legislation, administrative action or
judicial decision.
Exchange Offer. The exchange of old notes for new notes pursuant to the
exchange offer should not be treated as a taxable "exchange" because the new
notes should not be considered to differ materially in kind or extent from the
old notes. Rather, the new notes received by a holder of the old notes should
be treated as a continuation of the old notes. As a result, there should be no
gain or loss to holders exchanging the old notes for the new notes pursuant to
the exchange offer.
Interest. A holder will be required to include in gross income the stated
interest on the old notes or the new notes in accordance with the holder's
method of tax accounting.
Tax Basis. Generally, a holder's tax basis in a note will initially be the
holder's purchase price for the note and will be decreased by the amount of any
principal payments received. If a holder exchanges an old note for a new note
pursuant to the exchange offer, the tax basis of the new note immediately after
such exchange should equal the holder's tax basis in the old note immediately
prior to the exchange.
Sale. The sale, exchange or other disposition of a note (other than pursuant
to the exchange offer) generally will be taxable event. A holder generally will
recognize gain or loss equal to the difference between (1) the amount of cash
plus the fair market value of any property received upon such sale, exchange or
other taxable disposition of a note, other than in respect of accrued interest
on the note, and (2) the holder's adjusted tax basis in such note. Such gain or
loss will be capital gain or loss and would be long-term capital gain or loss
if the notes were held by the holder for the applicable holding period
(currently more than one year) at the time of such sale or other disposition.
The holding period of each new note would include the holding period of the old
notes exchanged for the new note.
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<PAGE>
Purchasers of Notes at Other than Original Issuance. The above summary does
not discuss special rules that may affect the treatment of purchasers that
acquire notes other than at original issuance, including those provisions of
the Code relating to the treatment of "market discount" and "acquisition
premium." Any such purchaser should consult its tax advisor as to the
consequences to the purchaser of the acquisition, ownership and disposition of
notes.
Backup Withholding. Unless a holder or other payee provides his correct
taxpayer identification number (employer identification number or social
security number) to us, as payor, and certifies that such number is correct
under the federal income tax backup withholding rules, generally 31% of (1) the
interest paid on the notes and (2) the proceeds of sale or other disposition of
the notes must be withheld and remitted to the United States Department of
Treasury. Therefore, each holder should complete and sign the Substitute Form
W-9 so as to provide the information and certification necessary to avoid
backup withholding. Certain exchanging holders, including, among others,
certain foreign individuals, are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt foreign recipient, that exchanging holder must submit a statement,
signed under penalty of perjury, attesting to that individual's exempt foreign
status.
Withholding is not an additional federal income tax. Rather, the federal
income tax liability of a person subject to withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
The foregoing summary is included for general information only. Each holder
of old notes should consult its tax advisor as to the specific tax consequences
to it of the exchange offer, including the application of and effect of state,
local, foreign and other tax laws.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account as a result
of market-making activities or other trading activities in connection with the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of new notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new notes received in exchange for old notes where such old
notes were acquired as a result of market-making activities or other trading
activities.
We will receive no proceeds in connection with the exchange offer or any
sale of new notes by broker-dealers. New notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new notes or a combination
of these methods of resale, at market prices prevailing at the time of resale,
at prices related to prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
that may receive compensation in the form of commissions or concessions from
the broker-dealers or the purchasers of any new notes. Any broker-dealer that
resells new notes that were received by it for its own account pursuant to the
exchange offer and any broker or dealer that participates in a distribution of
new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, and any profit on any resale of new notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act of 1933. The letter of
transmittal states that by acknowledging that it will deliver, and by
delivering, a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act of 1933.
LEGAL MATTERS
Mayer, Brown & Platt, Chicago, Illinois will pass on the validity of, and
certain legal matters concerning, the new notes.
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<PAGE>
INDEPENDENT AUDITORS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K as of April 25,
1999 and April 26, 1998 and for the years ended April 25, 1999, April 26, 1998
and April 27, 1997, as set forth in their report, which is incorporated by
reference into this prospectus and elsewhere in the registration statement. Our
consolidated financial statements are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
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<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$390,000,000
Exchange Offer
ISLE OF CAPRI CASINOS, INC.
8 3/4% Senior Subordinated Notes due 2009
----------------
PROSPECTUS
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
(a) Section 145 of the Delaware General Corporation Law; Section 83 of the
Louisiana Business Corporation Law; Article 8, Subarticle E of the Mississippi
Business Corporation Law; Article 109 of the Colorado Business Corporation Act;
and Division VIII, Part E of the Iowa Business Corporation Act: (1) give
corporations organized in those states broad powers to indemnify their present
and former directors and officers and those of affiliated corporations against
expenses incurred in the defense of any lawsuit to which they are made parties
by reason of being or having been such directors or officers, subject to
specified conditions and exclusions, (2) give a director or officer who
successfully defends an action the right to be so indemnified and (3) authorize
the co-registrants to buy directors' and officers' liability insurance.
(b) Article 8 of Isle of Capri's Certificate of Incorporation provides for
indemnification of directors and officers to the fullest extent permitted by
law.
In accordance with Section 102(b)(7) of the Delaware General Corporation
Law, Isle of Capri's Certificate of Incorporation provides that directors shall
not be personally liable for monetary damages for breaches of their fiduciary
duty as directors except for (1) breaches of their duty of loyalty to the
registrant or its stockholders, (2) acts or omissions not in good faith or that
involve intentional misconduct or knowing violations of law, (3) unlawful
payment of dividends as prohibited by Section 174 of the Delaware General
Corporation Law or (4) transactions from which a director derives an improper
personal benefit.
Various provisions contained in the Articles of Incorporation, By-laws or
other organizational documents of the other co-registrants provide for
indemnification of the directors and officers of those co-registrants and, in
some cases, limit or eliminate the personal liability of the directors of those
co-registrants in accordance with the laws of the states in which those co-
registrants are organized.
Item 21. Exhibits and Financial Statement Schedules
(a) A list of exhibits filed with this registration statement is contained
in the index to exhibits, which is incorporated by reference.
(b) None required or applicable.
(c) Not applicable.
Item 22. Undertakings
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) that, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the
II-1
<PAGE>
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
in Item 20 or otherwise, the registrant has been advised that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
(6) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this
form within one business day of receipt of such request and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of this registration statement through the date of
responding to the request.
(7) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in this registration statement
when it became effective.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
registrants has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Biloxi,
State of Mississippi, on July 2, 1999.
Isle of Capri Casinos, Inc.
/s/ Bernard Goldstein
By: _________________________________
Bernard Goldstein
Chairman, Chief Executive Officer
and Director
CSNO, Inc.; Grand Palais Riverboat,
Inc.; IOC-COAHOMA, Inc.; Isle of
Capri Casino-Tunica, Inc.; Isle of
Capri Casino Colorado, Inc.; Isle of
Capri Hotels-Bossier City, L.L.C.;
Louisiana Riverboat Gaming
Partnership; LRG Hotels, L.L.C.;
LRGP Holdings, Inc.; Riverboat
Corporation of Mississippi;
Riverboat Corporation of
Mississippi-Vicksburg; Riverboat
Services, Inc.; St. Charles Gaming
Company, Inc.
/s/ Bernard Goldstein
By: _________________________________
Bernard Goldstein
Chairman, Chief Executive Officer
and Director
PPI, Inc.
/s/ Bernard Goldstein
By: _________________________________
Bernard Goldstein
Chairman, President, Chief
Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Allan B.
Solomon and Rexford A. Yeisley, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement and to
file the same, with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<C> <S> <C>
/s/ Bernard Goldstein Chairman, Chief Executive Officer July 2, 1999
__________________________ and Director--Isle of Capri
Bernard Goldstein Casinos, Inc.; CSNO, Inc.; Grand
Palais Riverboat, Inc.; IOC-
Coahoma, Inc.; Isle of Capri
Casino-Tunica, Inc.; Isle of
Capri Casino Colorado, Inc.; Isle
of Capri Hotels-Bossier City,
L.L.C.; Louisiana Riverboat
Gaming Partnership; LRG Hotels,
L.L.C.; LRGP Holdings, Inc.;
Riverboat Corporation of
Mississippi; Riverboat
Corporation of Mississippi-
Vicksburg; Riverboat Services,
Inc.; St. Charles Gaming Company,
Inc. (Principal Executive
Officer)
Chairman, President, Chief
Executive Officer and
Director--PPI, Inc. (Principal
Executive Officer)
/s/ John M. Gallaway President, Chief Operating Officer July 2, 1999
__________________________ and Director--Isle of Capri
John M. Gallaway Casinos, Inc.; CSNO, Inc.; Grand
Palais Riverboat, Inc.; IOC-
Coahoma, Inc.; Isle of Capri
Casino-Tunica, Inc.; Isle of
Capri Casino Colorado, Inc.; Isle
of Capri Hotels-Bossier City,
L.L.C.; Louisiana Riverboat
Gaming Partnership; LRG Hotels,
L.L.C.; LRGP Holdings, Inc.;
Riverboat Corporation of
Mississippi; Riverboat
Corporation of Mississippi-
Vicksburg; Riverboat Services,
Inc.; St. Charles Gaming Company,
Inc.
Director--PPI, Inc.
/s/ Allan B. Solomon Executive Vice President, July 2, 1999
__________________________ Secretary, General Counsel and
Allan B. Solomon Director--Isle of Capri Casinos,
Inc.; CSNO, Inc.; Grand Palais
Riverboat, Inc.; IOC-Coahoma,
Inc.; Isle of Capri Casino-
Tunica, Inc.; Isle of Capri
Casino Colorado, Inc.; Isle of
Capri Hotels-Bossier City,
L.L.C.; Louisiana Riverboat
Gaming Partnership; LRG Hotels,
L.L.C.; LRGP Holdings, Inc.;
Riverboat Corporation of
Mississippi; Riverboat
Corporation of Mississippi-
Vicksburg; Riverboat Services,
Inc.; St. Charles Gaming Company,
Inc.
Secretary and Director--PPI, Inc.
/s/ James Patten Director--PPI, Inc. July 2, 1999
__________________________
James Patten
/s/ Robert S. Director--Isle of Capri Casinos, July 2, 1999
Goldstein Inc.
__________________________
Robert S. Goldstein
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
<C> <S> <C>
/s/ Alan J. Glazer Director--Isle of Capri Casinos, July 2, 1999
__________________________ Inc.
Alan J. Glazer
/s/ Emanuel Crystal Director--Isle of Capri Casinos, July 2, 1999
__________________________ Inc.
Emanuel Crystal
/s/ Randolph Baker Director--Isle of Capri Casinos, July 2, 1999
__________________________ Inc.
Randolph Baker
/s/ Rexford A. Yeisley Vice President, Chief Financial July 2, 1999
__________________________ Officer, Treasurer and Assistant
Rexford A. Yeisley Secretary--Isle of Capri Casinos,
Inc.; CSNO, Inc.; Grand Palais
Riverboat, Inc.; IOC-Coahoma,
Inc.; Isle of Capri Casino-
Tunica, Inc.; Isle of Capri
Casino Colorado, Inc.; Isle of
Capri Hotels-Bossier City,
L.L.C.; Louisiana Riverboat
Gaming Partnership; LRG Hotels,
L.L.C.; LRGP Holdings, Inc.;
Riverboat Corporation of
Mississippi; Riverboat
Corporation of Mississippi-
Vicksburg; Riverboat Services,
Inc.; St. Charles Gaming Company,
Inc. (Principal Financial and
Accounting Officer)
Treasurer--PPI, Inc. (Principal
Financial and Accounting Officer)
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Purchase Agreement, dated as of April 20, 1999, among Isle of Capri
Casinos, Inc., the subsidiary guarantors named therein and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Wasserstein Perella Securities, Inc., for themselves and as
representatives of the other initial purchasers(20)
3.1A Certificate of Incorporation of Casino America, Inc.(5)
3.1B Amendment to Certificate of Incorporation of Casino America, Inc.(20)
3.2A By-laws of Casino America, Inc.(5)
3.2B Amendments to By-laws of Casino America, Inc., dated February 7,
1997(13)
3.3 Articles of Incorporation of CSNO, Inc.
3.4 By-laws of CSNO, Inc.
3.5 Amended and Restated Articles of Incorporation of Grand Palais
Riverboat, Inc.
3.6 By-laws of Grand Palais Riverboat, Inc.
3.7 Articles of Incorporation of IOC-Coahoma, Inc.
3.8 By-laws of IOC-Coahoma, Inc.
3.9 Articles of Incorporation of Isle of Capri Casino-Tunica, Inc.
3.10 By-laws of Isle Capri Casino-Tunica, Inc.
3.11 Articles of Incorporation of Isle of Capri Casino Colorado, Inc.
3.12 By-laws of Isle of Capri Casino Colorado, Inc.
3.13 Articles of Organization of Isle of Capri Hotels-Bossier City, L.L.C.
3.14 Operating Agreement of Isle of Capri Hotels-Bossier City, L.L.C.
3.15 Amended and Restated Partnership Agreement of Louisiana Riverboat
Gaming Partnership
3.16 Articles of Organization of LRG Hotels, L.L.C.
3.17 Amended and Restated Operating Agreement of LRG Hotels, L.L.C.
3.18 Articles of Incorporation of LRGP Holdings, Inc.
3.19 By-laws of LRGP Holdings, Inc.
3.20 Articles of Incorporation of PPI, Inc.
3.21 By-laws of PPI, Inc.
3.22 Articles of Incorporation of Riverboat Corporation of Mississippi
3.23 By-laws of Riverboat Corporation of Mississippi
3.24 Articles of Incorporation of Riverboat Corporation of Mississippi-
Vicksburg
3.25 By-laws of Riverboat Corporation of Mississippi-Vicksburg
3.26 Articles of Incorporation of Riverboat Services, Inc.
3.27 By-laws of Riverboat Services, Inc.
3.28 Articles of Incorporation of St. Charles Gaming Company, Inc.
3.29 By-laws of St. Charles Gaming Company, Inc.
4.1 Specimen Certificate of Common Stock(2)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.3A Specimen Warrant Agreement with respect to warrants to purchase
900,000 shares of Isle of Capri Casinos, Inc.'s common stock(3)
4.3B Form of Warrant Agreement with respect to warrants to purchase 500,000
shares of Isle of Capri Casinos, Inc.'s common stock(12)
4.4A Warrant, dated June 9, 1995, of Crown Casino Corporation to purchase
up to 416,667 shares of Isle of Capri Casinos, Inc.'s common stock(7)
4.4B Warrant, dated May 3, 1996, of Crown Casino Corporation to purchase up
to 416,667 shares of Isle Capri Casinos, Inc.'s common stock(8)
4.5A Indenture, dated as of November 1, 1993, between Casino America, Inc.
and Shawmut Bank Connecticut, National Association, as trustee(4)
4.5B First Supplemental Indenture, dated as of April 29, 1994, between
Casino America, Inc. and Shawmut Bank Connecticut, National
Association, as trustee(4)
4.5C Second Supplemental Indenture, dated as of March 8, 1995, between
Casino America, Inc. and Shawmut Bank Connecticut, National
Association, as trustee(7)
4.5D Third Supplemental Indenture, dated as of May 3, 1996, between Casino
America, Inc. and Fleet National Bank, as trustee(8)
4.5E Fourth Supplemental Indenture, dated as of July 26, 1996, between
Casino America, Inc. and Fleet National Bank, as trustee(8)
4.6A Indenture, dated as of August 1, 1996, between Casino America, Inc.
and Fleet National Bank, as trustee(8)
4.6B First Supplemental Indenture, dated as of April 21, 1999, between Isle
of Capri Casinos, Inc. and Fleet National Bank, as trustee(20)
4.7 Isle of Capri Casinos, Inc. agrees to furnish to the Securities and
Exchange Commission, upon its request, the instruments defining the
rights of holders of long term debt where the total amount of
securities authorized thereunder does not exceed 10% of Isle of Capri
Casinos, Inc.'s total consolidated assets
4.8 Rights Agreement, dated as of February 7, 1997, between Casino
America, Inc. and Norwest Bank Minnesota, N.A., as rights agent(13)
4.9 Indenture, dated as of April 23, 1999, among Isle of Capri Casinos,
Inc. the subsidiary guarantors named therein and State Street Bank and
Trust Company, as trustee(20)
4.10 Registration Rights Agreement, dated as of April 23, 1999, among Isle
of Capri Casinos, Inc., the subsidiary guarantors named therein and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wasserstein
Perella Securities, Inc., for themselves and on behalf of the other
initial purchasers(20)
5.1 Opinion of Mayer, Brown & Platt as to the legality of the securities
being registered
10.1 Amended and Restated Berth Rental Agreement, dated as of May 12, 1992,
between the Biloxi Port Commission and Riverboat Corporation of
Mississippi(2)
10.2A Biloxi Waterfront Project Lease, dated as of May 12, 1986, among the
City of Biloxi, Mississippi, Point Cadet Development Corporation and
Riverboat Corporation of Mississippi(2)
10.2B Addendum to Lease Agreement, dated as of August 1, 1992, among the
City of Biloxi, Mississippi, Point Cadet Development Corporation and
Riverboat Corporation of Mississippi(4)
10.2C Second Addendum to Lease, dated as of April 9, 1994, among the City of
Biloxi, Mississippi, Point Cadet Development Corporation, the Biloxi
Port Commission and Riverboat Corporation of Mississippi(4)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.2D Third Addendum to Casino Lease, dated as of April 26, 1995, among the
City of Biloxi, Mississippi, Point Cadet Development Corporation, the
Biloxi Port Commission and Riverboat Corporation of Mississippi(7)
10.3 Declaration of Shared Facilities Agreement for the Isle of Capri
Casino and Hotel, Biloxi, Mississippi, dated as of April 26, 1995,
made by Riverboat Corporation of Mississippi(7)
10.4 Intercreditor Agreement, dated as of May 1, 1995, by and among The
Peoples Bank, Shawmut Bank of Connecticut, N.A. and Riverboat
Corporation of Mississippi(7)
10.5 Agreement for Sale and Purchase, dated as of November 8, 1994, by and
between Casino America, Inc. and Pompano Park Associates, Limited
Partnership(7)
10.6 Variable Gaming Adjustment Covenant, made as of June 30, 1995 by PPI,
Inc., in favor of Pompano Park Associates, Limited Partnership(7)
10.7 Casino America, Inc. 1992 Stock Option Plan(1)
10.8 Casino America, Inc. 1992 Stock Option Plan Amendment(3)
10.9 Casino America, Inc. 1993 Stock Option Plan, as amended(7)
10.10 Casino America, Inc. description of Employee Bonus Plan(3)
10.11 Amended and Restated Partnership Agreement, dated as of May 15, 1997,
of Louisiana Riverboat Gaming Partnership (see exhibit 3.15)
10.12 Management Agreement, dated as of January 4, 1993, between Riverboat
Services, Inc. and Louisiana Riverboat Gaming Partnership(3)
10.13 Management Agreement, dated as of March 2, 1995, between Riverboat
Services, Inc. and St. Charles Gaming Company, Inc(7)
10.14 Casino America, Inc. Retirement Trust and Savings Plan(3)
10.15A Deed of Trust, Leasehold Deed of Trust, Assignment of Rents, Fixture
Filing, Security Agreement and Financing Statement, dated as of
November 15, 1993, in a Principal Amount of $105,000,000 by Riverboat
Corporation of Mississippi to J. Morton Matrick, as trustee for the
benefit of Shawmut Bank Connecticut, National Association, as
indenture trustee(4)
10.15B Deed of Trust, Leasehold Deed of Trust, Assignment of Rents, Fixture
Filing, Security Agreement and Financing Statement, dated as of
November 15, 1993, in a Principal Amount of $105,000,000 by Riverboat
Corporation of Mississippi to J. Morton Matrick, as trustee for the
benefit of Shawmut Bank Connecticut, National Association, as
indenture trustee(4)
10.16 Security Agreement, dated as of November 16, 1993, from Casino
America, Inc. and the Collateral Grantors party thereto to Shawmut
Bank Connecticut, National Association, as trustee(4)
10.17 First Preferred Fleet Mortgage, dated as of November 15, 1993, by
Riverboat Corporation of Mississippi to Shawmut Bank Connecticut,
National Association, as trustee(4)
10.18 Security Agreement Supplement No. 2, dated as of January 4, 1994,
between Casino America, Inc. and Shawmut Bank Connecticut, National
Association, as trustee(4)
10.19 First Amendment to First Preferred Fleet Mortgage, dated as of January
6, 1994, by Riverboat Corporation of Mississippi to Shawmut Bank
Connecticut, National Association, as trustee(4)
10.20 Director's Option Plan(6)
10.21A Biloxi Waterfront Project Lease, dated as of April 9, 1994, by and
between the City of Biloxi, Mississippi and Riverboat Corporation of
Mississippi(4)
10.21B First Amendment to Biloxi Waterfront Project Lease (Hotel Lease),
dated as of April 26, 1995, by and between the City of Biloxi,
Mississippi and Riverboat Corporation of Mississippi(7)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.22 Settlement Agreement, dated as of April 14, 1994, among the City of
Biloxi, Mississippi, Point Cadet Development Corporation, Riverboat
Corporation of Mississippi, Casino America, Inc., Sea Harvest, Inc.
and Wayne Hicks and Terryss Hicks(4)
10.23 Management Agreement, dated as of December 23, 1994, between Riverboat
Corporation of Mississippi and Mississippi Innkeepers, Inc.(7)
10.24 Amended Stock Purchase Agreement, dated as of June 2, 1995, among
Crown Casino Corporation, St. Charles Gaming Company, Inc. and
Louisiana Riverboat Gaming Partnership(7)
10.25 Crowne Plaza Resort New Development License Agreement, dated as of
December 30, 1994, between Holiday Inns Franchising, Inc. and
Riverboat Corporation of Mississippi(7)
10.26 Security Agreement-Pledge, dated as of June 9, 1995, between Louisiana
Riverboat Gaming Partnership and Crown Casino Corporation(7)
10.27 Shareholders Agreement, dated as of June 9, 1995, by and between Crown
Casino Corporation and Louisiana Riverboat Gaming Partnership(7)
10.28 Amended and Restated Lease, dated as of April 19, 1999, among Port
Resources, Inc. and CRU, Inc., as landlords, and St. Charles Gaming
Company, Inc., as tenant(20)
10.29 Bareboat Charter Party Agreement, dated as of March 20, 1995, between
Riverboat Chartering Company, L.C. and Riverboat Corporation of
Mississippi(7)
10.30 Purchase Option Agreement, dated as of March 20, 1995, between
Riverboat Chartering Company, L.C. and Riverboat Corporation of
Mississippi(7)
10.31 Guaranty Agreement, dated as of March 20, 1995, between Riverboat
Chartering Company, L.C. and Riverboat Corporation of Mississippi(7)
10.32 Development Agreement, dated as of June 5, 1995, between St. Charles
Gaming Company, Inc. and Calcasieu Parish Police Jury(7)
10.33 Note Purchase Agreement, dated as of July 20, 1995, by and among
Louisiana Riverboat Gaming Partnership, St. Charles Gaming Company,
Inc., Nomura Holding America Inc. and First National Bank of
Commerce(7)
10.34 Lease, dated as of July 1, 1995, between Pompano Park Associates,
Inc., as lessor, and Casino America, Inc., as lessee(7)
10.35 Ground Lease with Option to Purchase, dated as of February 9, 1995,
between Iron Dukes, Inc. and Isle of Capri Casino Colorado, Inc.(7)
10.36 Promissory Note, dated June 29, 1995, by and between PPI, Inc. and
Capital Bank(9)
10.37 Florida Real Estate Mortgage, Assignment of Rents, and Security
Agreement, dated as of June 29, 1995, by and between PPI, Inc. and
Capital Bank(9)
10.38 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and John M. Gallaway(20)
10.39 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Allan B. Solomon(20)
10.40 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Rexford A. Yeisley(20)
10.41 Stock Purchase Agreement, dated as of February 27, 1996, by and
between Casino America, Inc., on the one hand, and Bernard Goldstein,
Robert Goldstein, Richard Goldstein and Jeffrey Goldstein, on the
other hand(10)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.42 Stock Purchase and Sale Agreement pursuant to a Plan of
Reorganization, dated as of December 29, 1995, between Casino
America, Inc. and Grand Palais Riverboat, Inc.(10)
10.43 Form of Stock Purchase Agreement, dated as of January 19, 1996,
between Casino America, Inc. and Crown Casino Corporation(10)
10.44 Purchase Agreement, dated as of July 2, 1996, by and among CSNO,
Inc., LRGP Holdings, Inc. and Louisiana River Site Development,
Inc.(12)
10.45 Escrow Agreement, dated as of July 2, 1996, by and among LRGP
Holdings, Inc., Casino America, Inc., Louisiana River Site
Development, Inc., Louisiana Downs, Inc. and Boult, Cummings, Conners
& Berry, PLC(12)
10.46 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Edward Reese(20)
10.47 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Robert Boone(20)
10.48 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and James Guay(20)
10.49 Employment Agreement, dated as of January 6, 1999, by and between
Isle of Capri Casinos, Inc. and Timothy M. Hinkley(20)
10.50 Management Agreement, dated as of April 28, 1997, between Casino
America, Inc. and Riverboat Corporation of Mississippi(14)
10.51 Management Agreement, dated as of April 28, 1997, between Casino
America, Inc. and Riverboat Corporation of Mississippi-Vicksburg(14)
10.52 Management Agreement, dated as of April 25, 1997, between Casino
America, Inc. and ICB, L.L.C.(14)
10.53 Operating Agreement of ICB, L.L.C., dated as of April 25, 1997,
between Casino America of Colorado, Inc. and Blackhawk Gold, Ltd.(14)
10.54 Amended Casino America, Inc. 1992 Stock Option Plan(11)
10.55 Amended Casino America, Inc. l993 Stock Option Plan(11)
10.56 Management Agreement, dated as of July 29, 1997, between Casino
America, Inc. and Isle of Capri Black Hawk, L.L.C.(16)
10.57 Joint Venture Agreement of Capri Cruises, between Commodore Cruises
Limited and Isle of Capri Casino Corporation(18)
10.58 Amended Casino America, Inc. 1993 Stock Option Plan(15)
10.59 Amended Casino America, Inc. 1993 Stock Option Plan(17)
10.60 Lease, dated as of March 1, 1999, by and among R. M. Leatherman, Jr.,
et al. and Isle of Capri-Tunica, Inc.(19)
10.61 Asset Purchase Agreement, dated as of October 7, 1998, by and among
Tunica Partners, LP and Isle of Capri Casino-Tunica, Inc. and Isle of
Capri Casinos, Inc.(19)
10.62 Amendment No. 1 to Asset Purchase Agreement, dated as of December 7,
1998, by and among Tunica Partners, LP and Isle of Capri Casino-
Tunica, Inc. and Isle of Capri Casinos, Inc.(19)
10.63 Amendment No. 2 to Asset Purchase Agreement, dated as of February 24,
1999, by and among Tunica Partners, LP and Isle of Capri Casino-
Tunica, Inc. and Isle of Capri Casinos, Inc.(19)
10.64 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Bernie Goldstein(20)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.65 Employment Agreement, dated as of January 25, 1999, between Isle of
Capri Casinos, Inc. and Gregory D. Guida(20)
10.66 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and William C. Kilduff, Jr.(20)
10.67 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Roger Deaton(20)
10.68 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Mark Fulton(20)
10.69 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Mike Howard(20)
10.70 Employment Agreement, dated as of January 6, 1999, between Isle of
Capri Casinos, Inc. and Bob Fiore(20)
10.71 Employment Agreement, dated as of March 1, 1999, between Isle of Capri
Casinos, Inc. and Robert Griffin(20)
10.72 Credit Agreement, dated as of April 23, 1999, among Isle of Capri
Casinos, Inc., the lenders listed therein, Canadian Imperial Bank of
Commerce, as administrative agent and issuing lender, Bank One of
Louisiana, N.A., as syndication agent and Wells Fargo Bank, N.A., as
documentation agent(20)
12.1 Computation of ratio of earnings to fixed charges
21.1 Subsidiaries of Isle of Capri Casinos, Inc.(20)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Mayer, Brown & Platt (contained in Exhibit 5.1)
24.1 Powers of attorney (contained on the signature page to this
registration statement)
25.1 Form T-1 Statement of eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
</TABLE>
- --------
(1) Filed as an exhibit to Casino America, Inc.'s Current Report on Form 8-K
filed June 17, 1992 (File No. 0-20538) and incorporated herein by
reference.
(2) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 30, 1992 (File No. 0-20538) and
incorporated herein by reference.
(3) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 30, 1993 (File No. 0-20538) and
incorporated herein by reference.
(4) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 30, 1994 (File No. 0-20538) and
incorporated herein by reference.
(5) Filed as an exhibit to Casino America, Inc.'s Registration Statement on
Form S-1 filed September 3, 1993, as amended (Reg. No. 33-68434), and
incorporated herein by reference.
(6) Filed as an exhibit to Casino America, Inc.'s Registration Statement on
Form S-8 filed June 30, 1994 (File No. 33-80918) and incorporated herein
by reference.
(7) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 30, 1995 (File No. 0-20538) and
incorporated herein by reference.
(8) Filed as an exhibit to Casino America, Inc.'s Registration Statement on
Form S-3 filed March 21, 1996 (No. 333-02610) and incorporated herein by
reference.
(9) Filed as an exhibit to Casino America, Inc.'s Quarterly Report on Form 10-
Q for the fiscal quarter ended October 31, 1995 (File No. 0-20538) and
incorporated herein by reference.
(10) Filed as an exhibit to Casino America, Inc.'s Quarterly Report on Form 10-
Q for the fiscal quarter ended January 30, 1996 (File No. 0-20538) and
incorporated herein by reference.
<PAGE>
(11) Filed as an exhibit to Casino America, Inc.'s Proxy Statement for the
fiscal year ended April 30, 1996 (File No. 0-20538) and incorporated
herein by reference.
(12) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 30, 1996 (File No. 0-20538) and
incorporated herein by reference.
(13) Filed as an exhibit to Casino America, Inc.'s Current Report on Form 8-K
filed on February 14, 1997 (File No. 0-20538) and incorporated herein by
reference.
(14) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 27, 1997 (File No. 0-20538) and
incorporated herein by reference.
(15) Filed as an exhibit to Casino America, Inc.'s Proxy Statement for the
fiscal year ended April 27, 1997 (File No. 0-20538) and incorporated
herein by reference.
(16) Filed as an exhibit to the Isle of Capri Black Hawk L.L.C./Isle of Capri
Black Hawk Capital Corp. Registration Statement on Form S-4 (Reg. No. 333-
38093) and incorporated herein by reference.
(17) Filed as an exhibit to Casino America, Inc.'s Proxy Statement for the
fiscal year ended April 26, 1998 (File No. 0-20538) and incorporated
herein by reference.
(18) Filed as an exhibit to Casino America, Inc.'s Annual Report on Form 10-K
for the fiscal year ended April 26, 1998 (File No. 0-20538) and
incorporated herein by reference.
(19) Filed as an exhibit to Isle of Capri Casinos, Inc.'s Quarterly Report on
Form 10-Q for the fiscal quarter ended January 24, 1999 (File No. 0-20538)
and incorporated herein by reference.
(20) Filed as an exhibit to Isle of Capri Casinos, Inc.'s Annual Report on Form
10-K for the fiscal year ended April 25, 1999 (File No. 0-20538) and
incorporated herein by reference.
<PAGE>
Exhibit 3.3
<TABLE>
<CAPTION>
<S> <C>
ARTICLES OF : UNITED STATES OF AMERICA
INCORPORATION : STATE OF FLORIDA
CSNO, INC. : COUNTY OF PALM BEACH
</TABLE>
BE IT KNOWN, that on this 17th day of November 1992,
BEFORE ME, the undersigned, a Notary Public in and for the County of Palm
Beach, State of Florida, personally appeared ALLAN B. SOLOMON, who declared to
me, Notary, in the presence of the undersigned competent witnesses, that
availing himself of the provisions of the Louisiana Business Corporation Law, he
does hereby form a corporation under and in accordance with the following
Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation is: CSNO, INC.
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in any lawful activity for
which corporations may be formed under the Business Corporation Law, including
but not limited to the operation of a casino style boat and/or boats and a dock
or mooring facility, or land based facilities with electronic gaming devices as
permitted by law.
<PAGE>
ARTICLE III
CAPITAL
This corporation has authority to issue an aggregate of one thousand
(1,000) shares of stock, all of which are designated common stock having par
value per share of One Dollar ($1.00).
ARTICLE IV
PREEMPTIVE RIGHTS
Shareholders shall have preemptive rights.
ARTICLE V
CUMULATIVE VOTING
In the election of Directors, each shareholder of record shall have the
right to multiply the number of votes to which he is entitled by the number of
Directors to be elected, and to cast all such votes for one candidate, or
distribute them among any two or more candidates.
ARTICLE VI
CORPORATION ACTION OF SHAREHOLDERS
If shareholder action or approval is required by law in connection with the
amendment of these Articles or any merger, consolidation, transfer of corporate
assets or dissolution of or involving the corporation, such action or approval
shall be taken or given only upon the affirmative vote of not less than fifty-
one percent (51%) of the number of shares entitled to vote on the particular
question.
2
<PAGE>
ARTICLE VII
SHAREHOLDERS' CONSENT
Wherever the affirmative vote of shareholders is required to authorize or
constitute corporate action, the consent in writing to such action signed only
by shareholders holding that proportion of the total voting power on the
question which is required by law or by these Articles of Incorporation,
whichever requirement is higher, shall be sufficient for the purpose, without
necessity for a meeting of shareholders.
ARTICLE VIII
DIRECTORS
Section 1. Number of Directors. The number of Directors of the
Corporation shall be such number, not less than one (1) or more than (10), as
shall be elected from time to time by the shareholder(s).
Section 2. Director's Proxies. Any Director absent from a meeting of the
Board of Directors or any committee thereof, may be represented by any other
Director, shareholder, or their designee, who may cast the vote of the absent
Director according to the written instructions, general or special, of the
absent Director.
ARTICLE IX
REVERSION
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, which are not claimed by the shareholders entitled thereto
within one year after the dividend or redemption price became payable or the
shares became issuable, despite reasonable efforts by the Corporation to pay the
dividend or
3
<PAGE>
redemption price or deliver the certificates for the share to such shareholders
within such time, shall, at the expiration of such time, revert in full
ownership to the Corporation, and the Corporation's obligation to pay such
dividend or redemption price or issue such shares, as the case may be, shall
thereupon cease; provided that the Board of Directors may, at any time for any
reason satisfactory to it, but need not, authorize (a) a payment of the amount
of any cash or property dividend or redemption price or (b) issuance of any
shares, ownership of which has reverted to the Corporation pursuant to this
Article IX to the entity who or which would be entitled thereto had such
reversion not occurred.
ARTICLE X
INCORPORATOR
The name and post office address of the Incorporator is: Allan B. Solomon,
7777 Glades Road, Suite 300, Boca Raton, Florida 33434.
THUS DONE AND PASSED in triplicate originals, in my office in the City of
Boca Raton, County of Palm Beach, State of Florida, on the day, month and year
hereinabove set forth, in the presence of the undersigned competent witnesses
and me, Notary, after due reading of the whole.
WITNESSES:
/s/ Rose L. Hayes /s/ Allan B. Solomon
- --------------------------- -------------------------
/s/ Valerie D. Baker
- --------------------------
/s/ Elaine M. Hulan
-------------------
NOTARY
(Notary Seal)
4
<PAGE>
EXHIBIT 3.4
BY-LAWS OF
CSNO, Inc.
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of
CSNO, Inc. (the "Corporation"), a Louisiana corporation, as follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Isle of Capri Boulevard, in the City of Bossier City, State of Louisiana,
(71111) or such other location as may be designated by the Directors from time
to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation shall
be kept, and the financial position and the results of its operations recorded,
in accordance with the accounting methods selected by the Directors from time to
time, and if not so selected, the books and records shall be maintained in
accordance with generally accepted accounting principles consistently applied.
The books and records of the Corporation shall reflect all the Corporation's
transactions and shall be appropriate and adequate for the Corporation's
business. The accounting year of the Corporation for financial reporting and
for federal income tax purposes shall be consistent with that of the Stockholder
or Stockholders.
(b) Access to Accounting Records. All books, records, files, securities
and other documents or information maintained by the Corporation shall be
maintained at the Principal Business Office or at any other office of the
Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation shall
be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman, President or a Vice President, and by the
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any signature
upon a certificate may be a facsimile. Certificates on which a facsimile
signature of a former
<PAGE>
officer, transfer agent or registrar appears may be issued with the same effect
as if he were such officer, transfer agent or registrar on the date of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder" shall
mean the person, firm or corporation in whose name outstanding shares of capital
stock of the Corporation are currently registered on the stock record books of
the Corporation. A record shall be kept of the name of the person, firm or
corporation owning the stock represented by such certificates, the respective
dates thereof and, in the case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the Corporation
may be authorized only by the Stockholder named in the certificate (or his legal
representative or duly authorized attorney-in-fact) and upon surrender for
cancellation of the certificate or certificates for such shares. The Stockholder
in whose name shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the Corporation; provided,
that when any transfer of shares shall be made as collateral security and not
absolutely, such fact shall be so expressed in the entry of transfer if both the
transferor and the transferee request the Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of stock to
be lost or destroyed shall make an affidavit or affirmation of that fact in such
form as the Directors may require, and shall, if the Directors so require, give
the Corporation a bond of indemnity in form and with one or more sureties
satisfactory to the Directors of at least double the value, as determined by the
Directors, of the stock represented by such certificate in order to indemnify
the Corporation against any claim that may be made against it on account upon a
new certificate may be issued in the same tenor and for the same number of
shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of Stockholders
may be held at such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. The annual meeting of
Stockholders shall be held on the date of the annual meeting for Casino America,
Inc. At the annual meeting the Stockholders, voting as provided in the Articles
of Incorporation, shall elect Directors and shall transact such other business
as may properly be brought before the meeting. Special meetings of the
Stockholders entitled to vote shall be called by the Secretary at any time upon
request of the Chairman of the Board of Directors, the President or the
Directors (acting upon majority vote) or upon request by Stockholders holding
ten percent (10%) or
2
<PAGE>
more of the voting power of the Stockholders. Meetings of the Stockholders
hereunder will be held upon no less than seven (7) and no more than forty-five
(45) days prior written notice delivered in accordance with these By-Laws. Any
Stockholder may vote at any meeting in person or by proxy. Participation in any
meeting of the Stockholders may be in person or by telephone. Notice of any
meeting may be waived in writing, either before or after the meeting. The
presence of a Stockholder at any meeting shall constitute a waiver of notice and
the form thereof, unless a Stockholder's presence at such meeting is solely for
the purpose of objecting to the form or notice of the holding of a meeting
without proper notice. The holders of a majority of all shares outstanding and
entitled to vote, represented either in person or by proxy, shall constitute a
quorum for the transaction of business at any annual or special meeting of the
Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented at
any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the business
and affairs of the Corporation shall be managed by, a Board of Directors of not
less than three, nor more than seven, except that when all of the outstanding
shares are held of record by fewer than three Stockholders, then there may be as
many Directors as there are Stockholders. At each annual meeting, the
Stockholders shall determine the number of Directors. The number of Directors
may be increased by the Stockholders or by the Directors or may be decreased by
the Stockholders (if there are fewer Stockholders than three), or in the event
of any vacancy or vacancies, by the Directors to eliminate such vacancies. Any
decrease in the number of Directors by the Stockholders shall have the effect of
terminating the term of office of all Directors unless the effect of such
decrease is merely
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to eliminate a vacancy or vacancies. If such decrease terminating the term of
office of all Directors is effected at a meeting of Stockholders, the new
Directors shall be elected at such meeting. Each Director shall hold office
until the annual meeting held next after his election and until his successor
shall have been elected and qualified, until he shall resign or until he shall
have been removed by the Stockholders in the manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by reason of
death, resignation, removal or otherwise or if a newly created directorship
results from an increase in the number of Directors, such vacancy may be filled
for the unexpired term by a majority vote of the Directors then in office or by
the sole remaining Director, although less than a quorum exists. Each person so
elected shall be a Director until his successor is elected by the Stockholders,
who may make such election at their next annual meeting or any special meeting
duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be held
at such time and place as may from time to time be determined by the Directors.
No notice need be given of any regular meeting. Special meetings of the
Directors may be held at such time and place as may be designated in the notice
or the waiver of notice of the meeting. Special meetings of the Directors may be
called by the Chairman of the Board, the President, by any two (2) Directors, or
by any one (1) Director when there are two (2) Directors or less then serving.
Unless notice shall be waived by all Directors, notice of any special meeting
(including a statement of the purposes thereof) shall be given to each Director
at least twenty-four (24) hours in advance of the meeting if oral or two (2)
days in advance of the meeting if by mail, telegraph or other written
communication. Attendance at a meeting by any Director, without objection in
writing by him, shall constitute his waiver of notice of such meeting. A
majority of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that if any vacancies exist by
reason of death, resignation, removal or otherwise, a majority of the remaining
Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must agree
to provide such background information, including a financial statement, and
consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such Director shall
abstain from participating in any action with respect to operations of the
Corporation in such state or jurisdiction pending such background check or
approval.
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(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities
and obligations as are associated by custom or statute with their respective
offices under the Louisiana Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Louisiana
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles of
Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise ordered by
the Directors, the President shall have full power and authority on behalf of
the Corporation to attend and to vote at any meeting of security holders of
other companies in which the Corporation may hold securities; to execute any
proxy for such meeting on behalf of the Corporation and to execute a written
action in lieu of a meeting of such other company on behalf of this Corporation.
At such meeting, by such proxy or by such writing in lieu of meeting, the
President shall possess and may exercise any and all rights and powers incident
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to the ownership of such securities that the Corporation might have possessed
and exercised if it had been present. The Directors may, from time to time,
confer like powers upon any other person or persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be given
by these By-Laws, the Articles of Incorporation or any of the Louisiana Business
Corporation Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any committee
designated by the Directors, may participate in a meeting of the Directors or of
such committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear and
communicate with each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting. The place of the
meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal or
adopt By-Laws at any regular meeting or at any special meeting called for that
purpose, subject to the power of the Stockholders to change or repeal such By-
Laws and subject to any other limitations on such authority of the Directors
provided by the Louisiana Business Corporation Laws.
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Exhibit 3.5
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF GRAND PALAIS RIVERBOAT, INC.
-------------------------------
Each of the undersigned, President and Secretary, respectively of Grand
Palais Riverboat, Inc. ("Corporation"), do hereby certify that:
i. Board of directors of the Corporation has authorized the execution and
filing of the following Amended and Restated Articles of Incorporation
which were duly adopted in accordance with LSA R.S. 12:31 et seq. by the
written consent of the sole shareholder of the Corporation on May 3, 1996,
pursuant to LSA R.S. 12:76:
FIRST: The name of the Corporation is Grand Palais Riverboat, Inc.
SECOND: The purposes for which this Corporation is formed are as
follows:
To engage in the lawful activity for which corporations may be
formed under the Louisiana Business Corporation Law;
To manufacture, purchase or otherwise acquire, own, mortgage,
pledge, sell, assign and transfer, or otherwise dispose of, to invest,
trade, deal in and deal with, goods, wares, merchandise and personal
property of every class and description;
To acquire, and pay for in cash, stock or bonds of this
Corporation, or otherwise, the goodwill, rights, assets and property,
and to undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage or otherwise dispose of letters patent of the
United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, relating to or useful in connection with
any business of this Corporation;
To carry on any of the businesses herein enumerated as principal,
factor, agent, commission merchant or broker;
To borrow money, and to issue, sell, pledge, or otherwise dispose
of the bonds, debentures, promissory notes, bills of exchange and
other obligations and evidences of indebtedness of the
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Corporation, from time to time, for any of the objects or purposes of
the Corporation, and to secure the same by mortgage. pledge or any
other hypothecation of any kind of property of the Corporation;
To purchase, subscribe for, use, take or otherwise acquire, hold
as investment or otherwise enjoy, and to sell, alienate, exchange,
deal in, deal with, guarantee, mortgage, encumber, pledge or otherwise
hypothecate notes, certificates of beneficial interest, obligations
and securities of any person, association, partnership, joint venture,
firm or corporation whatsoever, and while the owner thereof to
exercise and enjoy all the rights, powers and privileges incident to
perfect ownership thereof, including expressly the right to vote on
any shares of stock;
To lend and advance money to such persons, firms, partnerships,
joint ventures, associations and corporations, and on such terms as
may seem expedient, and to customers of, and persons having dealings
with this Corporation, in open account, unsecured or secured by goods,
wares and merchandise or land and real estate or otherwise howsoever,
To aid by loan of money, property or credit, or in any other
lawful manner, any person, partnership, joint venture, firm or
association or corporation of which the stocks, bonds or other
securities or evidences of indebtedness are held by this Corporation,
and to do any and all lawful acts or things designed to protect,
preserve, improve or enhance the value of any such stocks, bonds,
securities or evidences of indebtedness;
To guarantee dividends on the shares of the capital stock of any
corporation in which this Corporation at any time may have an
interest, and to endorse or otherwise guarantee the principal and
interest of the notes, bonds, debentures or other evidences of
indebtedness created or to be created by any corporation, person,
partnership, joint venture, firm or association.
To purchase, lease or otherwise acquire, own, hold, improve, use,
lease to others, sell, mortgage, encumber, pledge, alienate, or
otherwise dispose of and generally to deal in and with real estate,
and the fixtures and personal property incidental thereto or connected
therewith, in any and all lands, tenements, hereditaments, or any
interest therein, and
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To have one or more offices, to carry on all or any of its
operations and business, and without restriction or limit as to amount
to purchase or otherwise acquire, hold, own, use, mortgage, encumber,
sell, alienate, convey, or otherwise dispose of real and personal
property of every class and description in any of the States,
Districts, Territories or Colonies of the United States and in any and
all foreign countries, subject to the laws of such States, Districts,
Territories, Colonies or Country.
The foregoing clauses shall be construed both as purposes and
powers, and it is hereby expressly provided that the foregoing
enumeration of specific powers and purposes shall not be held to
restrict or limit in any manner the general powers or purposes of this
Corporation. In general, to carry on any other business in connection
with or related or incidental to the foregoing, whether manufacturing
or otherwise, permitted by law; to have and to exercise all the powers
conferred by present or future laws of Louisiana upon corporations
formed for any or all of the purposes aforesaid, and to do any or all
of the things herein set forth to the same extent as natural persons
might or could do.
THIRD: The duration of the Corporation is perpetual.
FOURTH: Deleted.
FIFTH: This Corporation reserves the right to amend, alter, change or
repeal any provision contained in these articles in the manner now or
hereafter prescribed by statute, and all rights conferred upon
shareholders herein are granted subject to this reservation.
SIXTH: The aggregate number of shares which the Corporation shall have
authority to issue is one thousand (1,000) without par value.
SEVENTH: The issuance by the Corporation of non-voting equity
securities is prohibited.
ii. The foregoing restatement accurately copies the Articles of Incorporation
and all amendments thereto in effect at the date of the restatement without
substantive change except for the deletion of Article Four of the original
Articles of Incorporation, and the addition of Article 7 to the Articles of
Incorporation;
iii. Each amendment to the Articles of Incorporation have been effected in
conformity with law;
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iv. The date of incorporation of the Corporation was March 29, 1993;
v. The date of the restatement of the Articles of Incorporation of the
Corporation is May 3, 1996;
IN WITNESS WHEREOF, these amended and restated Articles of Incorporation
have been signed on behalf of Grand Palais Riverboat, Inc. by its President and
Secretary on this 3rd day of May, 1996.
GRAND PALAIS RIVERBOAT, INC.
By: /s/ John M. Gallaway
-----------------------------------------
John M. Gallaway, President
By: /s/ Allan B. Solomon
----------------------------------------
Allan B. Solomon, Secretary
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EXHIBIT 3.6
BY-LAWS OF
GRAND PALAIS RIVERBOAT, INC.
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of
GRAND PALAIS RIVERBOAT, INC. (the "Corporation"), a Louisiana corporation, as
follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 307 I-
10 Service Road, in the City of Westlake, State of Louisiana, (70669) or such
other location as may be designated by the Directors from time to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect all
the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Corporation
shall be maintained at the Principal Business Office or at any other office of
the Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation
shall be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman, President or a Vice President, and by the
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any signature
upon
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a certificate may be a facsimile. Certificates on which a facsimile signature of
a former officer, transfer agent or registrar appears may be issued with the
same effect as if he were such officer, transfer agent or registrar on the date
of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder"
shall mean the person, firm or corporation in whose name outstanding shares of
capital stock of the Corporation are currently registered on the stock record
books of the Corporation. A record shall be kept of the name of the person, firm
or corporation owning the stock represented by such certificates, the respective
dates thereof and, in the case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Directors may require, and shall, if the Directors so
require, give the Corporation a bond of indemnity in form and with one or more
sureties satisfactory to the Directors of at least double the value, as
determined by the Directors, of the stock represented by such certificate in
order to indemnify the Corporation against any claim that may be made against it
on account upon a new certificate may be issued in the same tenor and for the
same number of shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of
Stockholders may be held at such time and place as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof. The annual
meeting of Stockholders shall be held on the date of the annual meeting for
Casino America, Inc. At the annual meeting the Stockholders, voting as provided
in the Articles of Incorporation, shall elect Directors and shall transact such
other business as may properly be brought before the meeting. Special meetings
of the Stockholders entitled to vote shall be called by the Secretary at any
time upon request of the Chairman of the Board of Directors, the President or
the Directors
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(acting upon majority vote) or upon request by Stockholders holding ten percent
(10%) or more of the voting power of the Stockholders. Meetings of the
Stockholders hereunder will be held upon no less than seven (7) and no more than
forty-five (45) days prior written notice delivered in accordance with these By-
Laws. Any Stockholder may vote at any meeting in person or by proxy.
Participation in any meeting of the Stockholders may be in person or by
telephone. Notice of any meeting may be waived in writing, either before or
after the meeting. The presence of a Stockholder at any meeting shall constitute
a waiver of notice and the form thereof, unless a Stockholder's presence at such
meeting is solely for the purpose of objecting to the form or notice of the
holding of a meeting without proper notice. The holders of a majority of all
shares outstanding and entitled to vote, represented either in person or by
proxy, shall constitute a quorum for the transaction of business at any annual
or special meeting of the Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented at
any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors of not less than three, nor more than seven, except that when all of
the outstanding shares are held of record by fewer than three Stockholders, then
there may be as many Directors as there are Stockholders. At each annual
meeting, the Stockholders shall determine the number of Directors. The number
of Directors may be increased by the Stockholders or by the Directors or may be
decreased by the Stockholders (if there are fewer Stockholders than three), or
in the event of any vacancy or vacancies, by the Directors to eliminate such
vacancies. Any decrease in the number of Directors by the Stockholders shall
have the effect
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of terminating the term of office of all Directors unless the effect of such
decrease is merely to eliminate a vacancy or vacancies. If such decrease
terminating the term of office of all Directors is effected at a meeting of
Stockholders, the new Directors shall be elected at such meeting. Each Director
shall hold office until the annual meeting held next after his election and
until his successor shall have been elected and qualified, until he shall resign
or until he shall have been removed by the Stockholders in the manner provided
by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Stockholders, who may make such election at their next annual meeting or any
special meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the Directors
may be called by the Chairman of the Board, the President, by any two (2)
Directors, or by any one (1) Director when there are two (2) Directors or less
then serving. Unless notice shall be waived by all Directors, notice of any
special meeting (including a statement of the purposes thereof) shall be given
to each Director at least twenty-four (24) hours in advance of the meeting if
oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such Director shall
abstain from participating in any action with respect to operations of the
Corporation in such state or jurisdiction pending such background check or
approval.
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(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Louisiana
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles
of Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise
ordered by the Directors, the President shall have full power and authority on
behalf of the Corporation (1) to attend and to vote at any meeting of security
holders of other companies in which the Corporation may hold securities; (2) to
execute any proxy for such meeting on behalf of the Corporation and (3) to
execute a written action in lieu of a meeting of such other company on behalf of
this Corporation. At such meeting, by such proxy or by such
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writing in lieu of meeting, the President shall possess and may exercise any and
all rights and powers incident to the ownership of such securities that the
Corporation might have possessed and exercised if it had been present. The
Directors may, from time to time, confer like powers upon any other person or
persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be
given by these By-Laws, the Articles of Incorporation or any of the Louisiana
Business Corporation Laws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any
committee designated by the Directors, may participate in a meeting of the
Directors or of such committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear and communicate with each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting. The place of
the meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal
or adopt By-Laws at any regular meeting or at any special meeting called for
that purpose, subject to the power of the Stockholders to change or repeal such
By-Laws and subject to any other limitations on such authority of the Directors
provided by the Louisiana Business Corporation Laws.
-6-
<PAGE>
Exhibit 3.7
Office of the Mississippi Secretary of State
P.O. Box 136, Jackson, MS 39205-0136 (601) 359-1333
Articles of Incorporation
The undersigned, pursuant to Section 79-4-2.02 (if a profit corporation) or
79-11-137 (if a nonprofit corporation) of the Mississippi Code of 1972,
hereby executes the following document and sets forth:
1. Type of Corporation: Profit.
2. Name of Corporation: IOC-Coahoma, Inc.
3. The future effective date is: N/A
4. For nonprofits only: N/A
5. For profits only: The Number (and Classes) if
any of shares the corporation
is authorized to issue is
(are) as follows
Class(es): Common
# of Shares Authorized: 1,000
6. Name and Street Address of Gregory D. Guida
the Registered Agent and Office: 711 Washington Loop
Biloxi, MS 39530-3848
7. Name and address of each Heather J. Camp
incorporator: 200 South Lamar Street, Suite 500
Jackson, MS 39201
8. Other Provisions N/A
9. Incorporator's Signature: /s/ Heather J. Camp
--------------------------
<PAGE>
Exhibit 3.8
BYLAWS
OF
IOC - COAHOMA, INC.
Preamble: These Bylaws are subordinate to and governed by the provisions of
the Articles of Incorporation of this Corporation, the Mississippi Business
Corporation Act and the Mississippi Professional Corporation Law.
THESE BY-LAWS (the "By-Laws") are adopted effective the 23rd day of
September, 1998 by unanimous consent of the Board of Directors (the "Directors")
of IOC - Coahoma, Inc. (the "Corporation"), a Mississippi corporation, as
follows:
ARTICLE 1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Washington Loop, Biloxi, Mississippi 39530, or such other location as may be
designated by the Directors from time to time.
ARTICLE 2. Accounting and Reports for the Corporation
Section (a). Record and Accounting. The books and records of the
Corporation shall be kept, and the financial position and the results of its
operations recorded, in accordance with the accounting methods selected by the
Directors from time to time, and if not so selected, the books and records shall
be maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect all
the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
Section (b). Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Corporation
shall be maintained at the Principal Business Office or at any other office of
the Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
Section (c). Outside Consultants. The Corporation may obtain the services
of outside accountants, attorneys and other consultants.
<PAGE>
ARTICLE 3. Shares
Section (a). Certificates of Stock. Every owner of stock of the Corporation
shall be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman, President or a Vice President, and by the
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any signature
upon a certificate may be a facsimile. Certificates on which a facsimile
signature of a former officer, transfer agent or registrar appears may be issued
with the same effect as if he were such officer, transfer agent or registrar on
the date of issue.
Section (b). Stock Record. As used in these By-Laws, the term "stockholder"
shall mean the person, firm or corporation in whose name outstanding shares of
capital stock of the Corporation are currently registered on the stock record
books of the Corporation. A record shall be kept of the name of the person, firm
or corporation owning the stock represented by such certificates, the respective
dates thereof and, in the case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
Section (c). Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
Section (d). Lost Certificates. Any Stockholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Directors may require, and shall, if the Directors so
require, give the Corporation a bond of indemnity in form and with one or more
sureties satisfactory to the Directors of at least double the value, as
determined by the Directors, of the stock represented by such certificate in
order to indemnify the Corporation against any claim that may be made against it
on account upon a new certificate may be issued in the same tenor and for the
same number of shares as the one alleged to have been destroyed or lost.
Section (e). Treasury Stock. Treasury stock shall be held by the
Corporation subject to disposal by the Directors in accordance with the Articles
of Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
<PAGE>
Section (f). Meetings. The annual meeting and all special meetings of
Stockholders may be held at such time and place within or without the State of
Mississippi as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof. The annual meeting of Stockholders shall be
held on such day of such month of each year (other than a Saturday, Sunday or
holiday) as shall be determined by the Directors or, if the Directors fails to
act, by the President. At the annual meeting the Stockholders, voting as
provided in the Articles of Incorporation, shall elect Directors and shall
transact such other business as may properly be brought before the meeting.
Special meetings of the Stockholders entitled to vote shall be called by the
Secretary at any time upon request of the Chairman of the Board of Directors,
the President or the Directors (acting upon majority vote) or upon request by
Stockholders holding ten percent (10%) or more of the voting power of the
Stockholders. Meetings of the Stockholders hereunder will be held upon no less
than seven (7) and no more than forty-five (45) days prior written notice
delivered in accordance with these By-Laws. Any Stockholder may vote at any
meeting in person or by proxy. Participation in any meeting of the Stockholders
may be in person or by telephone. Notice of any meeting may be waived in
writing, either before or after the meeting. The presence of a Stockholder at
any meeting shall constitute a waiver of notice and the form thereof, unless a
Stockholder's presence at such meeting is solely for the purpose of objecting to
the form or notice of the holding of a meeting without proper notice. The
holders of a majority of all shares outstanding and entitled to vote,
represented either in person or by proxy, shall constitute a quorum for the
transaction of business at any annual or special meeting of the Stockholders.
Section (g). Quorum and Voting. In case a quorum is not present or
represented at any meeting of the Stockholders, the Stockholders entitled to
vote thereat present in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
<PAGE>
ARTICLE 4. Administrative Provisions
Section (a). Directors. All corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors of not less than three, nor more than seven, except that when all of
the outstanding shares are held of record by fewer than three Stockholders, then
there may be as many Directors as there are Stockholders. At each annual
meeting, the Stockholders shall determine the number of Directors. The number of
Directors may be increased by the Stockholders or by the Directors or may be
decreased by the Stockholders (if there are fewer Stockholders than three), or
in the event of any vacancy or vacancies, by the Directors to eliminate such
vacancies. Any decrease in the number of Directors by the Stockholders shall
have the effect of terminating the term of office of all Directors unless the
effect of such decrease is merely to eliminate a vacancy or vacancies. If such
decrease terminating the term of office of all Directors is effected at a
meeting of Stockholders, the new Directors shall be elected at such meeting.
Each Director shall hold office until the annual meeting held next after his
election and until his successor shall have been elected and qualified, until he
shall resign or until he shall have been removed by the Stockholders in the
manner provided by law.
Section (b). Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Stockholders, who may make such election at their next annual meeting or any
special meeting duly called for that purpose.
Section (c). Meetings of Directors. Regular meetings of the Directors shall
be held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the Directors
may be called by the Chairman of the Board, the President, by any two (2)
Directors, or by any one (1) Director when there are two (2) Directors or less
then serving. Unless notice shall be waived by all Directors, notice of any
special meeting (including a statement of the purposes thereof) shall be given
to each Director at least twenty-four (24) hours in advance of the meeting if
oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
Section (d). Disclosure to Gaming Regulatory Authorities. Each Director
must agree to provide such background information, including a financial
statement, and consent to such
<PAGE>
background investigation, as may be required by gaming regulatory authorities of
any state or other jurisdiction in or subject to which the Corporation does or
proposes to do business, and must agree to respond to questions from such gaming
regulatory authorities. If any Director is unwilling or unable to obtain within
a reasonable period of time any necessary approval by gaming regulatory
authorities in any such state or other jurisdiction, then such Director shall,
if so requested by a majority of the remaining Directors, resign as a Director.
If and to the extent required by the gaming regulatory authorities of any state
or other jurisdiction in which the Corporation does or proposes to do business,
or of any state or jurisdiction whose laws or regulations are otherwise
applicable to the Corporation, such Director shall abstain from participating in
any action with respect to operations of the Corporation in such state or
jurisdiction pending such background check or approval.
Section (e). Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under Mississippi Business Corporation Law.
Section (f). Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim, or other
liability the Stockholder, Director, Officer, employee, or agent of the
corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by Mississippi Business
Corporation Law, as amended from time to time. The Corporation may advance
expenses incurred by the indemnitee by appropriate administrative action under
these By-Laws following the Corporation's receipt of the indemnitee's agreement
to reimburse the Corporation the for the advance in the event of a determination
that the indemnitee is not entitled to indemnification by the Corporation.
ARTICLE 5. Profit or Losses
Section (a). Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
Section (b). Surplus and Reserves. Subject to the provisions of the
Articles of Incorporation and of these By-Laws, the Directors in their
discretion may use and apply any of the net earnings or net assets of the
Corporation available for such purpose to purchase or acquire any of the shares
of the capital stock of the Corporation in accordance with law, or any of its
bonds, debentures, notes, scrip or other securities or evidences of
indebtedness, or from time to time may set aside from its net assets or net
earnings such sums as the Directors, in their absolute discretion, may think
proper as a reserve fund to meet contingencies, for the purpose of maintaining
or increasing the property or business of the Corporation, or for any other
purpose the Directors may think conducive to the best interests of the
Corporation.
<PAGE>
ARTICLE 6. Securities of Other Corporations
Section (a). Voting Securities Held by the Corporation. Unless otherwise
ordered by the Directors, the President shall have full power and authority on
behalf of the Corporation to (i) attend and to vote at any meeting of security
holders of other companies in which the Corporation may hold securities; (ii)
execute any proxy for such meeting on behalf of the Corporation; and (iii)
execute a written action in lieu of a meeting of such other company on behalf of
this Corporation. At such meeting, by such proxy or by such writing in lieu of
meeting, the President shall possess and may exercise any and all rights and
powers incident to the ownership of such securities that the Corporation might
have possessed and exercised if it had been present. The Directors may, from
time to time, confer like powers upon any other person or persons.
Section (b). Purchase and Sale of Securities. Unless otherwise ordered by
the Directors, the President shall have full power and authority on behalf of
the Corporation to purchase, sell, transfer or encumber any and all securities
of any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
ARTICLE 7. General Provisions
Section (a). Waiver of Notice. Whenever any notice whatever is required to
be given by these By-Laws, the Articles of Incorporation or any of the
Mississippi Business Corporation Laws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the actual required notice.
Section (b). Participation by Conference Telephone. Directors, or any
committee designated by the Directors, may participate in a meeting of the
Directors or of such committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear and communicate with each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting. The place of
the meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
Section (c). Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
<PAGE>
Section (d). Power to Amend. The Directors shall have power to amend,
repeal or adopt By-Laws at any regular meeting or at any special meeting called
for that purpose, subject to the power of the Stockholders to change or repeal
such By-Laws and subject to any other limitations on such authority of the
Directors provided by Mississippi Business Corporation Law.
C E R T I F I C A T E
I certify that the foregoing By-laws of IOC - Coahoma, Inc. were adopted by
unanimous written consent of the Directors as of September 23, 1998.
/s/ Allan B. Solomon
-----------------------------
ALLAN B. SOLOMON
Secretary
<PAGE>
Exhibit 3.9
Office of the Mississippi Secretary of State
P.O. Box 136, Jackson, MS 39205-0136 (601) 359-1333
Articles of Incorporation
The undersigned, pursuant to Section 79-4-2.02 (if a profit corporation) or
Section 79-11-137 (if a nonprofit corporation) of the Mississippi Code of
1972, hereby executes the following document and sets forth:
1. Type of Corporation: Profit
2. Name of Corporation: Isle of Capri Casino - Tunica, Inc.
3. The future effective date is: N/A
4. For nonprofits only: N/A
5. For profits only: The Number (and Classes) if any of
shares the corporation is
authorized to issue is (are) as
follows
Class(es): Common
# of Shares Authorized: 1,000
6. Name and Street Address of Gregory D. Guida
the Registered Agent and Office: 711 Washington Loop
Biloxi, MS 39530-3848
7. Name and address of each Dana E. Kelly
incorporator: 200 South Lamar Street, Suite 500
Jackson, MS 39201
8. Other Provisions: N/A
9. Incorporator's Signatures: /s/ Dana E. Kelly
------------------------
<PAGE>
Exhibit 3.10
BYLAWS
OF
ISLE OF CAPRI CASINO - TUNICA, INC.
Preamble: These Bylaws are subordinate to and governed by the provisions
of the Articles of Incorporation of this Corporation, the Mississippi Business
Corporation Act and the Mississippi Professional Corporation Law.
THESE BY-LAWS (the "By-Laws") are adopted effective the 4th day of
September, 1998 by unanimous consent of the Board of Directors (the "Directors")
of Isle of Capri Casino - Tunica, Inc. (the "Corporation"), a Mississippi
corporation, as follows:
ARTICLE 1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Washington Loop, Biloxi, Mississippi 39530, or such other location as may be
designated by the Directors from time to time.
ARTICLE 2. Accounting and Reports for the Corporation
Section (a). Record and Accounting. The books and records of the
Corporation shall be kept, and the financial position and the results of its
operations recorded, in accordance with the accounting methods selected by the
Directors from time to time, and if not so selected, the books and records shall
be maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect all
the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
Section (b). Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Corporation
shall be maintained at the Principal Business Office or at any other office of
the Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
Section (c). Outside Consultants. The Corporation may obtain the services
of outside accountants, attorneys and other consultants.
<PAGE>
ARTICLE 3. Shares
Section (a). Certificates of Stock. Every owner of stock of the
Corporation shall be entitled to a certificate, in such form as the Directors
may prescribe, certifying the number of shares of stock of the Corporation owned
by him. The certificates for such stock shall be numbered (separately for each
class) in the order in which they shall be issued and shall be signed in the
name of the Corporation by the Chairman, President or a Vice President, and by
the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any
signature upon a certificate may be a facsimile. Certificates on which a
facsimile signature of a former officer, transfer agent or registrar appears may
be issued with the same effect as if he were such officer, transfer agent or
registrar on the date of issue.
Section (b). Stock Record. As used in these By-Laws, the term
"stockholder" shall mean the person, firm or corporation in whose name
outstanding shares of capital stock of the Corporation are currently registered
on the stock record books of the Corporation. A record shall be kept of the name
of the person, firm or corporation owning the stock represented by such
certificates, the respective dates thereof and, in the case of cancellation, the
respective dates of cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be canceled and no new certificate or
certificates shall be issued in exchange for any existing certificate until such
existing certificate shall have been surrendered and canceled (except as
provided for in Section (d) of this Article 3).
Section (c). Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
Section (d). Lost Certificates. Any Stockholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Directors may require, and shall, if the Directors so
require, give the Corporation a bond of indemnity in form and with one or more
sureties satisfactory to the Directors of at least double the value, as
determined by the Directors, of the stock represented by such certificate in
order to indemnify the Corporation against any claim that may be made against it
on account upon a new certificate may be issued in the same tenor and for the
same number of shares as the one alleged to have been destroyed or lost.
Section (e). Treasury Stock. Treasury stock shall be held by the
Corporation subject to disposal by the Directors in accordance with the Articles
of Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
<PAGE>
Section (f). Meetings. The annual meeting and all special meetings of
Stockholders may be held at such time and place within or without the State of
Mississippi as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof. The annual meeting of Stockholders shall be
held on such day of such month of each year (other than a Saturday, Sunday or
holiday) as shall be determined by the Directors or, if the Directors fails to
act, by the President. At the annual meeting the Stockholders, voting as
provided in the Articles of Incorporation, shall elect Directors and shall
transact such other business as may properly be brought before the meeting.
Special meetings of the Stockholders entitled to vote shall be called by the
Secretary at any time upon request of the Chairman of the Board of Directors,
the President or the Directors (acting upon majority vote) or upon request by
Stockholders holding ten percent (10%) or more of the voting power of the
Stockholders. Meetings of the Stockholders hereunder will be held upon no less
than seven (7) and no more than forty-five (45) days prior written notice
delivered in accordance with these By-Laws. Any Stockholder may vote at any
meeting in person or by proxy. Participation in any meeting of the Stockholders
may be in person or by telephone. Notice of any meeting may be waived in
writing, either before or after the meeting. The presence of a Stockholder at
any meeting shall constitute a waiver of notice and the form thereof, unless a
Stockholder's presence at such meeting is solely for the purpose of objecting to
the form or notice of the holding of a meeting without proper notice. The
holders of a majority of all shares outstanding and entitled to vote,
represented either in person or by proxy, shall constitute a quorum for the
transaction of business at any annual or special meeting of the Stockholders.
Section (g). Quorum and Voting. In case a quorum is not present or
represented at any meeting of the Stockholders, the Stockholders entitled to
vote thereat present in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
<PAGE>
ARTICLE 4. Administrative Provisions
Section (a). Directors. All corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors of not less than three, nor more than seven, except that when all of
the outstanding shares are held of record by fewer than three Stockholders, then
there may be as many Directors as there are Stockholders. At each annual
meeting, the Stockholders shall determine the number of Directors. The number of
Directors may be increased by the Stockholders or by the Directors or may be
decreased by the Stockholders (if there are fewer Stockholders than three), or
in the event of any vacancy or vacancies, by the Directors to eliminate such
vacancies. Any decrease in the number of Directors by the Stockholders shall
have the effect of terminating the term of office of all Directors unless the
effect of such decrease is merely to eliminate a vacancy or vacancies. If such
decrease terminating the term of office of all Directors is effected at a
meeting of Stockholders, the new Directors shall be elected at such meeting.
Each Director shall hold office until the annual meeting held next after his
election and until his successor shall have been elected and qualified, until he
shall resign or until he shall have been removed by the Stockholders in the
manner provided by law.
Section (b). Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Stockholders, who may make such election at their next annual meeting or any
special meeting duly called for that purpose.
Section (c). Meetings of Directors. Regular meetings of the Directors
shall be held at such time and place as may from time to time be determined by
the Directors. No notice need be given of any regular meeting. Special meetings
of the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the Directors
may be called by the Chairman of the Board, the President, by any two (2)
Directors, or by any one (1) Director when there are two (2) Directors or less
then serving. Unless notice shall be waived by all Directors, notice of any
special meeting (including a statement of the purposes thereof) shall be given
to each Director at least twenty-four (24) hours in advance of the meeting if
oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
Section (d). Disclosure to Gaming Regulatory Authorities. Each Director
must agree to provide such background information, including a financial
statement, and consent to such
<PAGE>
background investigation, as may be required by gaming regulatory authorities of
any state or other jurisdiction in or subject to which the Corporation does or
proposes to do business, and must agree to respond to questions from such gaming
regulatory authorities. If any Director is unwilling or unable to obtain within
a reasonable period of time any necessary approval by gaming regulatory
authorities in any such state or other jurisdiction, then such Director shall,
if so requested by a majority of the remaining Directors, resign as a Director.
If and to the extent required by the gaming regulatory authorities of any state
or other jurisdiction in which the Corporation does or proposes to do business,
or of any state or jurisdiction whose laws or regulations are otherwise
applicable to the Corporation, such Director shall abstain from participating in
any action with respect to operations of the Corporation in such state or
jurisdiction pending such background check or approval.
Section (e). Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under Mississippi Business Corporation Law.
Section (f). Indemnification. The Corporation shall, and hereby does,
fully release, indemnify and hold any Stockholder, Director, officer, employee
or agent of the Corporation harmless from and against any loss, claim, or other
liability the Stockholder, Director, Officer, employee, or agent of the
corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by Mississippi Business
Corporation Law, as amended from time to time. The Corporation may advance
expenses incurred by the indemnitee by appropriate administrative action under
these By-Laws following the Corporation's receipt of the indemnitee's agreement
to reimburse the Corporation the for the advance in the event of a determination
that the indemnitee is not entitled to indemnification by the Corporation.
ARTICLE 5. Profit or Losses
Section (a). Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
Section (b). Surplus and Reserves. Subject to the provisions of the
Articles of Incorporation and of these By-Laws, the Directors in their
discretion may use and apply any of the net earnings or net assets of the
Corporation available for such purpose to purchase or acquire any of the shares
of the capital stock of the Corporation in accordance with law, or any of its
bonds, debentures, notes, scrip or other securities or evidences of
indebtedness, or from time to time may set aside from its net assets or net
earnings such sums as the Directors, in their absolute discretion, may think
proper as a reserve fund to meet contingencies, for the purpose of maintaining
or increasing the property or business of the Corporation, or for any other
purpose the Directors may think conducive to the best interests of the
Corporation.
<PAGE>
ARTICLE 6. Securities of Other Corporations
Section (a). Voting Securities Held by the Corporation. Unless otherwise
ordered by the Directors, the President shall have full power and authority on
behalf of the Corporation to (i) attend and to vote at any meeting of security
holders of other companies in which the Corporation may hold securities; (ii)
execute any proxy for such meeting on behalf of the Corporation; and (iii)
execute a written action in lieu of a meeting of such other company on behalf of
this Corporation. At such meeting, by such proxy or by such writing in lieu of
meeting, the President shall possess and may exercise any and all rights and
powers incident to the ownership of such securities that the Corporation might
have possessed and exercised if it had been present. The Directors may, from
time to time, confer like powers upon any other person or persons.
Section (b). Purchase and Sale of Securities. Unless otherwise ordered by
the Directors, the President shall have full power and authority on behalf of
the Corporation to purchase, sell, transfer or encumber any and all securities
of any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
ARTICLE 7. General Provisions
Section (a). Waiver of Notice. Whenever any notice whatever is required
to be given by these By-Laws, the Articles of Incorporation or any of the
Mississippi Business Corporation Laws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the actual required notice.
Section (b). Participation by Conference Telephone. Directors, or any
committee designated by the Directors, may participate in a meeting of the
Directors or of such committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear and communicate with each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting. The place of
the meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
Section (c). Consents. Any action of the Stockholders, the Directors or
any committee of the Directors which may be taken at a meeting thereof, may be
taken without a meeting if authorized by a writing signed by all of the holders
of shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
<PAGE>
Section (d). Power to Amend. The Directors shall have power to amend,
repeal or adopt By-Laws at any regular meeting or at any special meeting called
for that purpose, subject to the power of the Stockholders to change or repeal
such By-Laws and subject to any other limitations on such authority of the
Directors provided by Mississippi Business Corporation Law.
C E R T I F I C A T E
I certify that the foregoing By-laws of Isle of Capri Casino - Tunica, Inc.
were adopted by unanimous written consent of the Directors as of September 4,
1998.
/s/ Allan B. Solomon
--------------------
ALLAN B. SOLOMON
Secretary
<PAGE>
Exhibit 3.11
ARTICLES OF INCORPORATION
-------------------------
OF
--
ISLE OF CAPRI CASINO COLORADO, INC.
-----------------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned incorporator, being of
the age of eighteen years or more, desiring to organize a corporation under the
Colorado Business Corporation Act, makes, signs and verifies these Articles of
Incorporation.
ARTICLE I.
---------
The name of the corporation is Isle of Capri Casino Colorado, Inc.
(hereinafter referred to as the "Corporation").
ARTICLE II.
----------
The Corporation is to have perpetual existence.
ARTICLE III.
-----------
The nature of the business of the Corporation and the purposes for which it
is organized are to engage in any business and lawful act or activity for which
corporations may be organized under the Colorado Business Corporation Act and to
possess and employ all powers and privileges now or hereafter granted or
available under the laws of the State of Colorado to such corporations.
ARTICLE IV.
----------
In furtherance of the purposes set forth in Article III of these Articles
of Incorporation, the Corporation shall have and may exercise all of the rights,
powers and privileges now or hereafter conferred upon corporations organized
under and pursuant to the laws of the State of Colorado, including, but not
limited to, the power to enter into general partnerships, limited partnerships
(whether the Corporation be a limited or general partner), joint ventures,
syndicated pools,
<PAGE>
associations and other arrangements for carrying on one or more of the purposes
set forth in Article III of these Articles of Incorporation and in the Colorado
Business Corporation Act, jointly or in common with others. In addition, the
Corporation may do everything necessary, suitable or proper for the
accomplishment of any of its corporate purposes.
ARTICLE V.
---------
A. Authorized Shares: The aggregate number of shares which the
Corporation shall have authority to lease is Ten Thousand (10,000) shares
consisting of Ten Thousand (10,000) shares of common stock, with no par value
per share. All shares when issued shall be assessable and fully paid. Each
shareholder of record shall be entitled to all shareholders' meetings to one
vote for each share of stock standing in his name on the books of the
Corporation.
B. Issuance/Redemption: The Corporation shall not issue any voting
securities or other voting interests, including common stock, except in
accordance with the provisions of the Colorado Limited Gaming Act and the
regulations promulgated thereunder. The issuance of any voting securities or
other voting interests, including common stock, in violation thereof shall be
void and such voting securities or other voting interests, including common
stock, shall be deemed not to be issued and outstanding until (a) the
Corporation shall cease to be subject to the jurisdiction of the Colorado
Limited Gaming Control Commission, or (b) the Colorado Limited Gaming Control
Commission shall, by affirmative action, validate said issuance or waive any
defect in issuance.
No voting securities or other voting interests, including common stock,
issued by the Corporation and no interest, claim or charge therein or thereto
shall be transferred in any manner whatsoever except in accordance with the
provisions of the Colorado Limited Gaming Act and the regulations promulgated
thereunder. Any transfer in violation thereof shall be void and (a) the
2
<PAGE>
Corporation shall cease to be subject to the jurisdiction of the Colorado
Limited Gaming Control Commission, or (b) the Colorado Limited Gaming Control
Commission shall, by affirmative action, validate said transfer or waive any
defect in said transfer.
If the Colorado Limited Gaming Control Commission at any time determines
that a holder of voting securities or other voting interests of this
Corporation, including common stock, is unsuitable to hold such securities or
other voting interests, then the Corporation as the Issuer of such voting
securities or other voting interests, may, within sixty (60) days after the
finding of unsuitability, purchase such voting securities or other voting
interests of such unsuitable person at the lesser of (i) the cash equivalent of
such person's investment in the Corporation, or (ii) the current market price as
of the date of the finding of unsuitability, unless such voting securities or
other voting interests are transferred to a suitable person (as determined by
the Commission) within sixty (60) days after the finding of unsuitability.
Until such voting securities or other voting interests are owned by persons
found by the Commission to be suitable to own them, (a) the Corporation shall
not be required or permitted to pay any dividend or interest with regard to the
voting securities or other voting interests, (b) the holder of such voting
securities or other voting interests shall not be entitled to vote on any matter
as the holder of the voting securities or other voting interests, and such
voting securities or other voting interests shall not for any purposes be
included in the voting securities or other voting interests of the Corporation
entitled to vote, and (c) the Corporation shall not pay any remuneration in any
form to the holder of the voting securities or other voting interests, except in
exchange for such voting securities or other voting interests as provided in
this paragraph.
C. Transfer Restrictions: No shareholder shall be permitted to transfer
any shares of common stock unless and until all necessary approvals, if any, by
the Colorado Limited Gaming
3
<PAGE>
Control Commission and the Director of the Colorado Gaming Division for such
transfer shall have been obtained. The Corporation may require any shareholder
proposing to transfer common stock to provide evidence satisfactory to the
Corporation that either no such approvals are required for the proposed transfer
or any such approvals have been obtained.
D. Preemptive Rights: No shareholder of the Corporation shall have any
preemptive or similar right to acquire or subscribe for any additional unissued
or treasury shares of stock, or other securities of any class, or rights,
warrants or options to purchase stock or scrip, or securities of any kind
convertible into stock or for securities carrying stock purchase rights.
ARTICLE VI.
----------
The private property of the shareholders of the Corporation shall not be
subject to the payment of corporate debts, liabilities or obligations to any
extent whatsoever.
ARTICLE VII.
-----------
A. Board of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors which shall
exercise all the powers of the Corporation, except as otherwise provided in the
Bylaws of the Corporation or these Articles of Incorporation.
B. Number of Directors. The number of directors constituting the Initial
Board of Directors shall be two (2). Subject to the immediately preceding
sentence, the Board of Directors may fix the number of directors from time to
time by resolution adopted by a majority of the Board of Directors; provided,
however, that the number of directors shall not be reduced so as to shorten the
term of any director in office at the time of a vote to reduce the number of
directors.
4
<PAGE>
C. Election of Directors. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation so provide.
ARTICLE VIII.
------------
Cumulative voting in the election of directors is not allowed.
ARTICLE IX.
----------
No contract or other transaction between the Corporation and any other
person, firm, partnership, corporation, trust, joint venture, syndicate or other
entity shall be in any way affected or invalidated solely by reason of the fact
that any director or officer of the Corporation is peculiarly or otherwise
interested in, or is a director, officer, shareholder, employee, fiduciary or
member of such other entity or solely by reason of the fact that any director or
officer is in any way interested, may be a party to or may be interested in a
contract or other transaction of the Corporation.
ARTICLE X.
---------
A. Limitation on Liability of Directors. No director shall be personally
liable to the Corporation or any shareholder for monetary damages for breach of
fiduciary duty as a director, provided that this provision shall not eliminate
or limit the liability of a director (i) for any breach of such director's duty
of loyalty to the Corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for violations of Section 7-108-403 of the Colorado Business
Corporation Act, or (iv) for any transaction from which the director directly or
indirectly derived an improper personal benefit. If the Colorado Business
Corporation Act hereafter is amended to eliminate or limit further the liability
of a director, then, in addition to the elimination and limitation of liability
provided by the preceding sentence, the liability of each director of the
Corporation shall be eliminated or limited to the fullest
5
<PAGE>
extent provided or permitted by the Colorado Business Corporation Act, as so
amended. Any repeal or modification of this Section A of Article X shall not
adversely affect any right or protection of a director under this Section A of
Article X, as in effect immediately prior to such repeal or modification, with
respect to any liability that would have accrued, but for this Section A of
Article X, prior to such repeal or modification.
B. Limitation on Tort Liability of Directors and Officers. No director
or officer shall be personally liable for any injury to person or property
arising out of a tort committed by an employee unless such director or officer
was personally involved in the situation giving rise to the litigation or
unless such director or officer committed a criminal offense in connection with
such situation. The protection afforded in this Section B of Article X shall
not restrict other common-law protections and rights that a director or officer
may have.
C. Indemnification. The Corporation shall indemnify to the full extent
permitted by the laws of the State of Colorado as from time to time in effect
any person against all liability and expense (including attorneys' fees)
incurred by reason of the fact that he is or was a director or officer of the
Corporation, or, while serving as a director or officer of the Corporation, he
is or was serving at the request of the Corporation as a director, officer,
partner or trustee of, or in any similar managerial or fiduciary position of, or
as an employee or agent of another corporation, partnership, joint venture,
trust, association or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity. Expenses (including attorneys'
fees) incurred in defending an action, suit, or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit, or
preceding to the full extent and under the circumstances permitted by the
Colorado Business Corporation Act. The Corporation may purchase and maintain
insurance on behalf of any
6
<PAGE>
person who is or was a director, officer, employee, fiduciary, or agent of the
Corporation against any liability asserted against and incurred by such person
in nay such capacity or arising out of such person's position, whether or not
the Corporation would have the power to indemnify against such liability under
the provisions of this Section C of Article X. The indemnification provided by
this Section C of Article X shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under these Articles of Incorporation,
any bylaw, agreement, vote of shareholders or disinterested directors, statute,
or otherwise, and shall inure to the benefit of their heirs, executors and
administrators. The provisions of this Section C of Article X shall not be
deemed to preclude the Corporation from indemnifying other persons from similar
or other expenses and liabilities as the Board of Directors or the shareholders
may determine in a specific instance or by resolution of general application.
Neither the amendment nor repeal of this Section C of Article X, nor the
adoption of any provision of these Articles of Incorporation or Bylaws or of any
statute inconsistent with this Section C of Article X, shall eliminate or reduce
the effect of this Section C or Article X, in respect of any acts or omissions
occurring prior to such amendment, repeal or adoption of an inconsistent
provision.
ARTICLE XI.
----------
In addition to the other powers now or hereafter conferred upon the Board
of Directors by these Articles of Incorporation, the Bylaws of the Corporation,
or by the laws of the State of Colorado, the Board of Directors may from time to
time distribute to the shareholders in partial liquidation a portion of the
Corporation's assets, in cash or in kind; subject, however, to the limitations
contained in the Colorado Business Corporation Act.
7
<PAGE>
ARTICLE XII.
-----------
A. The address of the Corporation's initial registered office is 1400
Glenarm Place, Denver, Colorado 80202, and the name of the Corporation's initial
registered agent at such address is The Prentice-Hall Corporation System, Inc.
The written consent of the initial registered agent to the appointment as such
is attached hereto.
B. The address of the Corporation's initial principal office is 711
Washington Loop, Biloxi, Mississippi 39530.
ARTICLE XIII.
------------
The Directors shall have the power to make Bylaws and to amend or alter the
Bylaws from time to time as they deem proper for the administration and
regulation of the affairs of the Corporation.
ARTICLE XIV.
-----------
The right is reserved from time to time to amend, alter or repeal any
provisions of and to add to these Articles of Incorporation in any manner now or
hereafter prescribed or permitted by the laws of the State of Colorado, and the
rights of all shareholders are subject to this reservation.
ARTICLE XV.
----------
The name and address of the Incorporator of the Corporation is: Gary M.
Reiff, 410 Seventeenth Street, 22nd Floor, Denver, Colorado 80202-4437.
IN WITNESS WHEREOF, the Incorporator has executed these Articles of
Incorporation this 14th day of December, 1994.
/s/ Gary M. Reiff
---------------------------------------
Gary M. Reiff, Incorporator
8
<PAGE>
EXHIBIT 3.12
BYLAWS
------
OF
--
ISLE OF CAPRI CASINO COLORADO, INC.
----------------------------------
ARTICLE I
---------
Offices
-------
1. Business Offices. The principal office of the corporation shall be as
----------------
set forth in the Articles of Incorporation unless changed as provided by the
Colorado Business Corporation Act. The corporation may also have one or more
offices at such other place or places within or without the State of Colorado as
the Board of Directors may from time to time determine or as the business of the
corporation may require.
2. Registered Office. The registered office of the corporation shall be
-----------------
as set forth in the Articles of Incorporation, unless changed as provided by the
Colorado Business Corporation Act.
ARTICLE II
----------
Shareholders' Meetings
----------------------
1. Annual Meetings. The annual meeting of shareholders for the election
---------------
of directors to succeed those whose terms expire and for the transaction of such
other business as may come before the meeting shall be held in each year on the
second Tuesday of January at 10:00 A.M. or at such other date and time as
determined by the Board of Directors. If the day so fixed for such annual
meeting shall be a legal holiday, then such meeting shall be held on the next
succeeding business day.
2. Special Meetings. Special meetings of shareholders for any purpose or
----------------
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called at any time by the President or by the Secretary
upon the request (which shall state the purpose or purposes therefor) of the
holders of not less than one-tenth (1/10) of the outstanding shares of the
corporation entitled to vote at the meeting.
3. Place of Meeting. Meetings of shareholders shall be held at the
----------------
principal office of the corporation or at such other place or places, within or
without the State of Colorado, as may be from time to time determined by the
Board of Directors.
4. Notice of Meetings. Notice of each meeting of shareholders, whether
------------------
annual or special, shall be given not less than ten (10) nor more than sixty
(60) days prior thereto to each
<PAGE>
shareholder of record entitled to vote thereat by delivering written or printed
notice thereof to such shareholder personally or by telegraph, teletype,
electronically transmitted facsimile or other form of wireless communication or
by mailing the same to his address as it appears on the stock transfer books of
the corporation; provided, however, that if the authorized shares of the
corporation are proposed to be increased, at least thirty (30) days notice in
like manner shall be given. The notice of all meetings shall state the place,
day and hour thereof. The notice of a special meeting shall, in addition, state
the purposes thereof.
Whenever any notice is required to be given by these Bylaws, the Articles
of Incorporation of this corporation or by any of the corporation laws of the
State of Colorado, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
5. Fixing Record Date. The Board of Directors shall fix in advance a
------------------
date not more than seventy (70) days preceding the date of any meeting of
shareholders, or the day for payment of any dividend, or the date for the
allotment of rights or the date when any change or conversion or exchange of
authorized shares shall go into effect, or a date fixed as the final date for
obtaining such consent, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and in such
case only such shareholders as shall be shareholders of record on the date so
fixed shall be entitled to notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, or to give such consent, as the
case may be, notwithstanding any transfer of any shares on the books of the
corporation after any such record date fixed as aforesaid.
6. Voting List. At least ten (10) days before every meeting of
-----------
shareholders or two business days after the notice of the meeting is given
(whichever is earlier), a complete list of shareholders entitled to vote thereat
or any adjournment thereof, arranged in alphabetical order, showing the address
of each shareholder and the number of shares held by each, shall be prepared by
the officer or agent of the corporation who has charge of the stock transfer
books of the corporation. Such list shall be open at the principal office of
the corporation to the inspection of any shareholder during usual business hours
for such period, and such list shall be produced and kept at the time and place
of the meeting during the whole time thereof and subject to the inspection of
any shareholder who may be present.
7. Organization. The President or Vice President, if any, shall call
------------
meetings of shareholders to order and act as chairman of such meetings. In the
absence of said officers, any shareholder entitled to vote thereat, or any proxy
of any such shareholder, may call the meeting to order and a chairman shall be
elected. In the absence of the Secretary and Assistant Secretary, if any, of
the corporation, any person appointed by the chairman shall act as secretary of
such meetings.
2
<PAGE>
8. Quorum. The holders of a majority of the shares issued and
------
outstanding and entitled to vote thereat shall when present in person or
represented by proxy be requisite to and shall constitute a quorum at all
meetings of shareholders for the transaction of business, except as otherwise
provided by statute, the Articles of Incorporation, or by these Bylaws. In the
absence of a quorum at any such meeting, a majority of the shareholders present
in person or represented by proxy and entitled to vote thereat may adjourn the
meeting from time to time without further notice until a quorum shall be present
or represented.
9. Voting. At every meeting of shareholders, each shareholder having the
------
right to vote shall be entitled to vote in person or by proxy executed in
writing by such shareholder or by his duly authorized attorney-in-fact;
provided, however, that no such proxy shall be valid after eleven (11) months
from the date of its execution, unless such proxy expressly provides for a
longer period.
Shares standing in the name of another corporation may be voted by such
officer, agent or proxy as the Bylaws of such corporation may prescribe or, in
the absence of such provision, as the Board of Directors of such corporation may
determine.
Shares held by an administrator, executor, guardian or conservator may be
voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority to do so be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting
and shall not be counted in determining the total number of outstanding shares
at any given time.
When a quorum is present at any meeting, the vote of the holders of a
majority of the shares having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of a statute, the Articles of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question.
3
<PAGE>
In all elections of directors there shall not, unless otherwise
specifically stated in the Articles of Incorporation, be cumulative voting, and
every shareholder entitled to vote may vote in person or by proxy and shall have
one vote for each such share standing in his name on the
books of the corporation.
ARTICLE III
-----------
Board of Directors
------------------
1. Election and Tenure. The business and affairs of the corporation
-------------------
shall be managed by a Board of Directors who shall be elected at the annual
meetings of shareholders by a majority vote, and each director shall be elected
to serve until the next succeeding annual meeting and until his successor shall
be elected and shall qualify. Directors shall be removable in the manner
provided by the corporation laws of the State of Colorado.
2. Number and Qualification. The number of directors of the corporation
------------------------
shall be fixed from time to time by resolutions adopted by a majority of the
Board of Directors at any regular or special meeting of said Board; provided,
however, that no decrease in the number of directors constituting the Board of
Directors shall shorten the term of an incumbent director. Each director shall
hold office until the next annual meeting of shareholders and until his
successor has been elected and qualified. Directors need not be shareholders or
residents of the State of Colorado.
3. Organization Meetings. After each annual election of directors, the
---------------------
Board of Directors shall meet for the purpose of organization and/or transaction
of any other business.
4. Regular Meetings. Regular meetings of the Board of Directors shall be
----------------
held at such time or times as may be determined by the Board of Directors and
specified in the notice of each such meeting.
5. Special Meetings. Special meetings of the Board of Directors may be
----------------
called by the President on one (1) business days notice to each director, either
personally, by mail, by telegram or by telephone, and shall be called by the
President or Secretary in like manner and on like notice on the written request
of any one director. The purpose of a special meeting of the Board of Directors
need not be stated in the notice thereof.
6. Place of Meetings. Any meeting of the Board of Directors may be held
-----------------
at such place or places either within or without the State of Colorado as shall
from time to time be determined by the Board of Directors or fixed by the
President and designated in the notice of the meeting.
7. Quorum. A majority of the number of directors shall constitute a
------
quorum at all meetings of the Board of Directors, and the act of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. In the absence of a
4
<PAGE>
quorum at any such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice until a quorum shall be
present.
8. Vacancies. Any vacancy occurring in the Board of Directors may be
---------
filled by the affirmative vote of a majority of the remaining directors even
though they constitute less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase
in the number of directors shall be filled by the affirmative vote of a majority
of the directors then in office or by an election at an annual meeting or at a
special meeting of shareholders called for that purpose. A director chosen to
fill a position resulting from an increase in the number of directors shall hold
office until the next annual meeting of shareholders and until his successor
shall be elected and shall qualify.
9. Executive Committee. The Board of Directors, by resolution adopted by
-------------------
a majority of the number of directors may designate two (2) or more directors to
constitute an executive committee, which committee, to the extent provided in
such resolution, shall have and may exercise all of the authority of the Board
of Directors in the management of the corporation; provided, however, that such
-------- -------
committee shall in no case act to the exclusion of the Board of Directors
whether in session or not.
10. Compensation of Directors. Directors of the corporation may be paid
-------------------------
such annual compensation as may from time to time be fixed by resolution of the
Board of Directors. All directors may be allowed a fixed sum and expenses
incurred for attendance at each regular or special meeting of the Board of
Directors as may be from time to time fixed by resolution of the Board of
Directors. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
11. Stock Ownership. The Board of Directors has the power to authorize
---------------
that all stock or other securities purchased by the corporation in any foreign
or domestic corporation, be carried in the name of any brokerage house that the
directors are then dealing with and that they then authorize such brokerage
house to carry a particular security as a house account.
12. Authorized Issuance of Capital Stock. The Board of Directors shall
------------------------------------
have the power to issue the capital stock of the corporation to the full amount
or number of shares authorized by the Articles of Incorporation, in such amounts
and proportions as from time to time shall be determined by it, and to accept in
full such property as it may determine shall be good and sufficient
consideration and necessary for the business of the corporation.
13. Presumption of Assent. A director of the corporation who is present
---------------------
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken, unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the secretary of
the meeting before the adjournment thereof, or shall forward such dissent by
registered mail
5
<PAGE>
to the Secretary of the corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
14. Telephonic Communications. The Board of Directors may participate in
-------------------------
any meeting of the board by means of conference telephone or similar
communications equipment that enables all participants in the meeting to hear
each other at the same time. Such participation shall constitute presence in
person at the meeting.
ARTICLE IV
----------
Notices and Action Without Meeting
----------------------------------
1. Notices. Whenever under the provisions of a statute, the Articles of
-------
Incorporation or of these Bylaws notice is required to be given to any director
or shareholder, it shall be construed to mean notice, given in writing, by
United States first class mail, certified receipt requested or registered,
postage prepaid and addressed to such director or shareholder at such address as
appears on the books of the corporation, and such notice shall be deemed to be
given two (2) business days after the same shall be thus mailed.
2. Waiver of Notice. Whenever any notice whatsoever is required to be
----------------
given under the provisions of a statute, the Articles of Incorporation, or by
these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to said notice, whether before, at, or after the time stated therein,
or the appearance of such person or persons at such meeting, or in the case of a
shareholders' meeting by proxy, shall be deemed equivalent thereto.
3. Action Without A Meeting. Any action required or which may be taken
------------------------
at a meeting of the directors, shareholders or members of any executive
committee of the corporation, may be taken without a meeting, if a consent in
writing, setting forth the action so taken, shall be signed by all of the
directors, shareholders or members of the executive committee, as the case may
be, entitled to vote with respect to the subject matter thereof.
ARTICLE V
---------
Officers
--------
1. General. The initial officers of the corporation shall be a
-------
President, a Secretary and a Treasurer. The Board of Directors may appoint such
other officers, assistant officers, committees and agents, including a chairman
of the board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, as they may consider necessary, who shall be chosen in
such manner and hold their offices for such terms and have such authority and
duties as from time to time may be determined by the Board of Directors. The
salaries of all the officers of the corporation shall be fixed by the Board of
Directors. Any two or more offices may be held by the same person. In all
cases where the duties of any officer, agent or employee
6
<PAGE>
are not prescribed by the Bylaws or by the Board of Directors, such officer,
agent or employee shall follow the orders and instructions of the President.
2. Election and Term of Office. The officers of the corporation shall be
---------------------------
elected by the Board of Directors annually at the first meeting of the Board
held after each annual meeting of the shareholders. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until the
first of the following to occur: his successor shall have been duly elected and
shall have qualified; his death; his resignation; or his removal in the manner
hereinafter provided.
3. Removal. Any officer or agent may be removed by the Board of
-------
Directors or by the executive committee, if any, whenever, in its judgment, the
best interest of the corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not in itself create
contract rights.
4. Vacancies. A vacancy in any office, however occurring, may be filled
---------
by the Board of Directors for the unexpired portion of the term.
5. President. The President shall, subject to the direction and
---------
supervision of the Board of Directors, be the chief executive officer of the
corporation and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. He
shall, unless otherwise directed by the Board of Directors, attend in person or
by substitute appointed by him, or shall execute on behalf of the corporation
written instruments appointing a proxy or proxies to represent the corporation,
at all meetings of the stockholders of any other corporation in which the
corporation shall hold any stock. He may, on behalf of the corporation, in
person or by substitute or by proxy, execute written waivers of notice and
consents with regard to any such meetings. At all such meetings and otherwise,
the President, in person or by substitute or proxy as aforesaid, may vote the
stock so held by the corporation and may execute written consents and other
instruments with respect of such stock and may exercise any and all rights and
powers incident to the ownership of said stock, subject, however, to the
instructions, if any, of the Board of Directors. The President shall have
custody of the Treasurer's bond, if any.
6. Vice Presidents. The Vice Presidents, if any, shall assist the
---------------
President and shall perform such duties as may be assigned to them by the
President or by the Board of Directors. In the absence of the President, the
Vice President, if any, designated by the Board of Directors or (if there be no
such designation) designated in writing by the President shall have the powers
and perform the duties of the President. If no such designation shall be made,
all Vice Presidents, if any, may exercise such powers and perform such duties.
7. Secretary. The Secretary shall: (a) keep the minutes of the
---------
proceedings of the shareholders, executive committee and the Board of Directors;
(b) see that all notices are duly given in accordance with the provisions of
these Bylaws or as required by law; (c) be custodian
7
<PAGE>
of the corporate records and of the seal of the corporation and affix the seal
to all documents when authorized by the Board of Directors; (d) keep at the
corporation's registered office or principal place of business within or outside
Colorado a record containing the names and addresses of all shareholders and the
number and class of shares held by each, unless such a record shall be kept at
the office of the corporation's transfer agent or registrar; (e) sign with the
President, or a Vice President, if any, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of the stock transfer books of
the corporation, unless the corporation has a transfer agent; and (g) in
general, perform all duties incident to the office of Secretary and such other
duties as may from time to time be assigned to him by the President or by the
Board of Directors. Assistant Secretaries, if any, shall have the same duties
and powers, subject to supervision by the Secretary.
8. Treasurer. The Treasurer shall be the principal financial officer of
---------
the corporation and shall have the care and custody of all funds, securities,
evidences of indebtedness and other personal property of the corporation and
shall deposit the same in accordance with the instructions of the Board of
Directors. He shall receive and give receipts and acquittances for monies paid
in on account of the corporation, and shall pay out of the funds on hand all
bills, payrolls and other just debts of the corporation of whatever nature upon
maturity. He shall perform all other duties incident to the office of the
Treasurer and, upon request of the Board, shall make such reports to it as may
be required at any time. He shall, if required by the Board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the Board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the Board of Directors or the
President. The Assistant Treasurers, if any, shall have the same powers and
duties, subject to the supervision of the Treasurer.
The Treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account, prepare
and file all local, state and federal tax returns, prescribe and maintain an
adequate system of internal audit, and prepare and furnish to the President and
the Board of Directors statements of account, showing the financial position of
the corporation and the results of its operations.
ARTICLE VI
----------
Indemnification
---------------
The corporation shall indemnify any and all of its directors or officers,
or former directors or officers, or any person who may have served at its
request as a director or officer of another corporation in which it owns shares
of capital stock or of which it is a creditor, to the fullest extent permitted
by the laws of the State of Colorado.
8
<PAGE>
ARTICLE VII
-----------
Execution of Instruments
------------------------
1. Authority to Execute. The President shall have the power to execute
--------------------
and the Secretary shall have the power to attest to, on behalf and in the name
of the corporation, any deed, contract, bond, debenture, note or other
obligation or evidence of indebtedness, or proxy, or other instrument requiring
the signature of an officer of the corporation, except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation. Unless so authorized, no officer,
agent or employee shall have any power or authority to bind the corporation in
any way, to pledge its credit or to render it liable pecuniarily for any purpose
or in any amount.
2. Checks and Endorsements. All checks and drafts upon the funds to the
-----------------------
credit of the corporation in any of its depositories shall be signed by such of
its officers or agents as shall from time to time be determined by resolution of
the Board of Directors, which may provide for the use of facsimile signatures
under specified conditions, and all notes, bills receivable, trade acceptances,
drafts, and other evidences of indebtedness payable to the corporation shall,
for the purpose of deposit, discount or collection, be endorsed by such officers
or agents of the corporation or in such manner as shall from time to time be
determined by resolution of the Board of Directors.
ARTICLE VII
-----------
Shares of Stock
---------------
1. Certificates of Stock. The certificates of shares of the corporation
---------------------
shall be in such form not inconsistent with the Colorado Business Corporation
Act and the Articles of Incorporation as shall be approved by the Board of
Directors, and shall be numbered and shall exhibit in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares, such other matters as shall be required by law, and shall be signed
by the President, or a Vice President, if any, and the Secretary, or an
Assistant Secretary, if any, and shall be sealed with the seal of the
corporation or a facsimile thereof.
In case any officer who has signed a certificate ceases to hold such office
prior to the issuance or delivery of the certificate, such certificate may
nevertheless be issued and delivered by the corporation as though the officer
who signed such certificate or whose facsimile signature shall have been used
thereon had not ceased to be such officer of the corporation.
2. Lost and Destroyed Certificates. In case any certificate of stock of
-------------------------------
the corporation shall be alleged to have been destroyed or lost, the corporation
shall not be required to issue a new certificate in lieu thereof, except upon
receipt of evidence satisfactory to the Board of Directors of the destruction or
loss of such certificate, and, if so required by the Board of Directors, upon
receipt also of a bond in such sum as the Board may direct, not exceeding twice
9
<PAGE>
the value of such stock and, if so required, with surety or sureties
satisfactory to the Board, to indemnify the corporation against any claim that
may be made against it on account of the alleged destruction or loss of such
certificate.
3. Transfer of Stock. Transfers of the shares of the stock of the
-----------------
corporation shall be made only on the books of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary and upon the surrender of the
certificate or certificates for such shares. The corporation, under the
Articles of Incorporation, has the right to impose restrictions upon the
transfers of any of the shares of the stock of the corporation, or any interest
therein, and any transfers of shares shall be made in accordance with and
subject to any such restrictions from time to time so imposed.
4. Agreement to Transfer Stock. Any agreement entered into by and
---------------------------
between this corporation and/or its shareholders concerning the transfer of
shares of said corporation, when any holder of stock in this corporation is
desirous of selling or transferring all or any of his shares and/or the executor
or administrator of any deceased holder of stock is desirous of selling or
transferring all or any of such shares belonging to the estate of such deceased
shareholder, shall not be inconsistent with the Articles of Incorporation and
Bylaws of the corporation.
5. Consideration for Shares. Shares shall be issued for such
------------------------
consideration, expressed in dollars as shall be fixed from time to time by the
Board of Directors. Such consideration may consist, in whole or in part, of
money, other property (tangible or intangible), or in labor or services actually
performed for the corporation, but neither promissory notes nor future services
shall constitute payment or part payment for shares.
ARTICLE IX
----------
Dividends
---------
The Board of Directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and the Articles of Incorporation.
ARTICLE X
---------
Corporate Seal
--------------
The corporate seal shall be in such form as shall be approved by resolution
of the Board of Directors. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise. The impression
of the seal may be made and attested to by the Secretary or an Assistant
Secretary or the President for the authentication of contracts or other papers
requiring the seal.
10
<PAGE>
ARTICLE XI
----------
Fiscal Year
-----------
The fiscal year of the corporation shall be such year as shall be adopted
by the Board of Directors.
ARTICLE XII
-----------
Emergency Bylaws and Amendments
-------------------------------
1. Emergency Bylaws. In the event a quorum of the Board of Directors
----------------
cannot be readily obtained because of some catastrophic event, the Board of
Directors may adopt emergency Bylaws which shall, notwithstanding any different
provision elsewhere, be operative during such emergency and which may include
all provisions necessary for managing the corporation during the emergency.
2. Amendments. All Bylaws of the corporation shall be subject to
----------
alteration, amendment or repeal, and new Bylaws may be added by the affirmative
vote of a majority of a quorum of the members of the Board of Directors and/or
shareholders at any regular or special meeting.
CERTIFICATE
-----------
The undersigned hereby certifies that the undersigned is the duly elected,
qualified, acting and hereunto authorized Secretary of this corporation and that
the foregoing and annexed Bylaws constitute a true and complete copy of the
Bylaws of said corporation presently in full force and
effect.
IN WITNESS WHEREOF, the undersigned has signed this Certificate and affixed
hereto the seal of the corporation.
DATED AS OF: December 14, 1994.
/s/ Julie K. Watt
-------------------------------------
SECRETARY
11
<PAGE>
EXHIBIT 3.13
ARTICLES OF ORGANIZATION OF
ISLE OF CAPRI HOTELS - BOSSIER CITY, L.L.C.
BE IT KNOWN, that on the date stated below, before me, the undersigned
Notary Public, duly commissioned and qualified in and for the jurisdiction named
below, personally came and appeared SHAUN B. RAFFERTY (the "Organizer") as
organizer of Isle of Capri Hotels - Bossier City, L.L.C. (the "Company") and
adopts the following Articles of Organization of the Company pursuant to Title
12, Chapter 22 of the Louisiana Revised Statutes, the Louisiana Limited
Liability Company law (the "LaLLCL").
1. Name. The name of the Company is Isle of Capri Hotels - Bossier City,
L.L.C.
2. Purpose. The purpose of the Company is to engage in any lawful activity.
3. Management. The business of the Company shall be managed by or under the
authority of the members or one or more managers elected by the members (who may
but need not be members), as provided in the operating agreement of the Company.
The rights and duties, including any restrictions thereof, of the members, if
management is reserved to the members, or the managers, if management is vested
in managers, shall be specified in the operating agreement.
4. Limitation of Members' Liability. The members of the Company shall not
be personally liable for any monetary damages or breach of any duty, as and to
the extent provided in Section 1314 of the LaLLCL. If the LaLLCL is amended to
authorize any further elimination or limitation of the personal liability of
members, then the liability of the members of the Company shall be eliminated or
limited to the fullest extent permitted by the LaLLCL, as so amended. Any repeal
or modification of this Article by the members of the Company shall not
adversely affect any right or protection of a member of the Company under this
Article with respect to any act or omission occurring prior to the time of such
repeal or modification.
5. Indemnification. The Company shall have the power to provide in its
operating agreement for indemnification of its members, managers, employees and
agents to the fullest extent set forth in the LaLLCL. No amendment to the
operating agreement limiting the right to indemnification shall affect the
entitlement of any person to indemnification whose claim thereto results from
conduct occurring prior to the date of such amendment.
6. Organizer. the name and post office address of the Organizer is:
Shaun B. Rafferty
30th Floor - Texaco Center
400 Poydras Street
New Orleans, Louisiana 70130
<PAGE>
THUS DONE AND PASSED, on this November 5, 1997, before me, the undersigned
Notary Public, duly commissioned and qualified in and for Orleans Parish,
Louisiana, by the personal appearance of Shaun B. Rafferty as Organizer, who
acknowledged and declared under oath, in the presence of the two undersigned
witnesses, that he signed these Articles of Organization as his free act and
deed for the purposes stated herein.
/s/ Witness /s/ Shaun B. Rafferty
- ------------------------- ---------------------------------
Witness Shaun B. Rafferty
Organizer
/s/ Witness
- -------------------------
Witness
/s/ Daniel E. Davillier
-----------------------------
NOTARY PUBLIC
DANIEL E. DAVILLIER
NOTARY PUBLIC
State of Louisiana
My Commission is issued for Life.
<PAGE>
OPERATING AGREEMENT OF
ISLE OF CAPRI HOTELS - BOSSIER CITY, L.L.C.
EXHIBIT 3.14
THIS OPERATING AGREEMENT (this "Agreement"), effective as of
November 7, 1997, is entered into by and among CSNO, Inc. and LRGP Holdings,
Inc. (individually, a "Member" and collectively, the "Members"), each appearing
through its undersigned officer who personally appeared before the respective
Notaries Public on the dates stated below and declared under oath that they
recite and agree as follows:
1. Formation
The Members hereby establish the terms of the operation of Isle of
Capri Hotels - Bossier City, L.L.C. (the "Company"), a Louisiana limited
liability company, pursuant to Title 12, Chapter 22 of the Louisiana Revised
Statutes, the Louisiana Limited Liability Company law (the "LaLLCL"). They
unconditionally ratify, confirm and adopt the Articles of Organization (the
"Articles") and the Initial Report of the Company executed on November 5, 1997
by Shaun B. Rafferty, as organizer (the "Organizer"), in full.
2. Principal Place of Business
Both the registered office in Louisiana and the principal business
office of the Company (the "Principal Business Office") shall be located at 711
Isle Of Capri Boulevard, Bossier City, Louisiana 71111, or at such other
location as may be designated by the Members from time to time.
3. Release of Organizer
With their adoption of the Articles and the Initial Report, the
Members hereby unconditionally ratify, confirm and adopt all actions of the
Organizer to date. They further relieve the Organizer of any further duties or
obligations to the Company as of the date of this Agreement and agree that the
Company shall, and hereby does, fully release, indemnify and hold the Organizer
harmless from and against any loss, claim or other liability the Organizer may
incur at any time as a result of the Organizer's service to the Company.
<PAGE>
4. Accounting and Reports for the Company
(a) Records and Accounting. The books and records of the Company
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Company shall reflect all
the Company's transactions and shall be appropriate and adequate for the
Company's business. The accounting year of the Company for financial reporting
and for federal income tax purposes shall be consistent with that of the
Members.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Company shall be
maintained at the Principal Business Office or at any other office of the
Company agreed to by the Directors, and each Member, as well as its duly
authorized representative, shall have access to all books and records at the
offices of the Company and the right to inspect and copy them at reasonable
times and upon reasonable notice. Notwithstanding the foregoing, each Member
shall have the inspection rights granted by, and the Company shall maintain at
its registered office the records listed in, Section 1319 of the LaLLCL.
(c) Outside Consultants. The Company may obtain the services of
outside accountants, attorneys and other consultants.
(d) Reports. The Company shall use its best efforts to send the
following information to each person who was a Member at any time during the
year then ended:
(1) Such tax information regarding all items attributable to the
Company as shall be necessary for inclusion in federal income tax returns
by the Members.
(2) The balance sheet of the Company as of the end of such year and
statements of operations and changes in Members' capital contributions,
prepared in accordance with the accounting method selected. The
information shall also set forth distributions to the Members for the
period covered thereby and the amount of any distributions released from
reserves established in prior periods.
-2-
<PAGE>
5. Membership Interests and Capital Accounts
(a) Membership Interests and Organization. Exhibit A to this
Agreement states (1) the relative interests of each Member (the "Membership
Interests") in the Company, and (2) the initial contribution of cash or property
of each Member.
(b) Certificates for Membership Interests. The Membership Interests
shall not be represented by any certificate of membership or other evidence of
membership other than the Articles and this Agreement.
(c) Addition to or Withdrawal of Capital Contributions. Additional
capital may be contributed to the Company, or capital may be withdrawn, but only
as authorized by appropriate administrative actions under this Agreement.
(d) Capital Accounts. The capital accounts of the Members shall
initially be set as determined by the accountants for the Company or by written
unanimous consent of the Members, and a Member's capital account shall, from
time to time, be:
(1) Increased by:
(A) Any additional capital contributions of the Member as authorized
by appropriate administrative actions under this Agreement;
(B) The Member's share of profits of the Company, determined pursuant
to this Agreement, during each fiscal year, whether or not
distributed; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Company) contributed by the Member; or
(2) Decreased by:
(A) All distributions, whether of the capital or income, to or for the
account of the Member (other than payments received by the Member
in repayment of any loan);
(B) The Member's share of losses of the Company determined during each
fiscal year pursuant to this Agreement; and
-3-
<PAGE>
(C) The agreed fair market value of any property (less liabilities
assumed by the Member) distributed by the Company to the Member.
The foregoing provisions are intended to comply with the provisions contained in
Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code"), and capital accounts shall be
maintained in accordance with these provisions.
6. Administrative Provisions
(a) Directors. All powers shall be vested in, and the business and
affairs of the Company shall be managed by, a Board of Directors of not less
than three, nor more than seven. At each annual meeting, the Members shall
determine the number of Directors. The number of Directors may be increased by
the Members or by the Directors or may be decreased by the Members, or in the
event of any vacancy or vacancies, by the Directors to eliminate such vacancies.
Any decrease in the number of Directors by the Members shall have the effect of
terminating the term of office of all Directors unless the effect of such
decrease is merely to eliminate a vacancy or vacancies. If such decrease
terminating the term of office of all Directors is effected at a meeting of
Members, the new Directors shall be elected at such meeting. Each Director
shall hold office until the annual meeting held next after his election and
until his successor shall have been elected and qualified, until he shall resign
or until he shall have been removed by the Members in the manner provided by
law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Members, who may make such election at their next annual meeting or any special
meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the
Directors may be called by the Chairman of the Board, the President, by any two
(2) Directors, or by any one (1) Director when there are two (2) Directors or
less then serving. Unless notice shall be waived by all
-4-
<PAGE>
Directors, notice of any special meeting (including a statement of the purposes
thereof) shall be given to each Director at least twenty-four (24) hours in
advance of the meeting if oral or two (2) days in advance of the meeting if by
mail, telegraph or other written communication. Attendance at a meeting by any
Director, without objection in writing by him, shall constitute his waiver of
notice of such meeting. A majority of the total number of Directors shall
constitute a quorum for the transaction of business; provided, however, that if
any vacancies exist by reason of death, resignation, removal or otherwise, a
majority of the remaining Directors shall constitute a quorum for the purpose of
filling of such vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Company does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Company does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Company, such Director shall abstain
from participating in any action with respect to operations of the Company in
such state or jurisdiction pending such background check or approval.
(e) Officers. The Company shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporation Law. The officers shall not, however,
be managers under the LaLLCL.
(f) Authorizing Action. Any action to be taken by the Members under
the LaLLCL or this Agreement may be taken (1) at a meeting of the Members, held
on such terms and after notice required by this Agreement, or (2) by written
action of the Members. No notice need be given of any action proposed to be
taken by written action, or an approval given by written action, unless
specifically required by the LaLLCL or this Agreement. Copies of all written
actions must be kept with the records of the Company.
(g) Meetings. Meetings of the Members hereunder will be held upon no
less than seven (7) and no more than forty-five (45) days prior to written
notice delivered in accordance with this Agreement. Any Member may vote at any
meeting in person or
-5-
<PAGE>
by proxy. Participation in any meeting of the Members may be in person or by
telephone. Notice of any meeting may be waived in writing, either before or
after the meeting. The presence of a Member at any meeting shall constitute a
waiver of notice and the form thereof, unless a Member's presence at such
meeting is solely for the purpose of objecting to the form of notice or the
holding of a meeting without proper notice.
(h) Certificates of Authority. In accordance with Section
12:1305(C)(5) of the LaLLCL, each of the Members, the Directors, the Secretary
and the Assistant Secretary is authorized to execute any certificate confirming
the membership of any Member (including that of the certifying Member), the
authenticity of any records of the Company or the identity of any Member,
Director, manager, person or entity authorized to take action on behalf of the
Company. Any person dealing with the Company may rely conclusively on any
certificate executed by a Member, Director, the Secretary or the Assistant
Secretary and shall not have any obligation to investigate or verify the
statements in the certificate or the Member's, Director's, the Secretary's or
the Assistant Secretary's authority to execute the certificate. This conclusive
right to rely applies even in the case of actions listed in Section 1318(B) of
the LaLLCL.
(i) Indemnification. The Company shall, and hereby does, fully
release, indemnify and hold any Member, Director, officer, employee or agent of
the Company harmless from and against any loss, claim or other liability the
Member, Director, officer, employee or agent of the Company may incur at any
time as a result of the indemnitee's service to the Company, to the fullest
extent permitted or required by the LaLLCL, as amended from time to time. The
Company may advance expenses incurred by the indemnitee by appropriate
administrative action under this Agreement following the Company's receipt of
the indemnitee's agreement to reimburse the Company for the advance in the event
of a determination that the indemnitee is not entitled to indemnification by the
Company.
(j) Admission of Additional Members. The Members may admit to the
Company additional Members who will participate in the profits, losses, cash
available for distributions, and ownership of the assets of the Company only by
joint action of the Members.
7. Profit or Losses
The net profits or the net losses (and any separately stated items,
including without limitation, depreciation, amortization and tax credits) of the
Company shall be
-6-
<PAGE>
allocated to the Members, pro-rata in accordance with their Membership Interests
in the Company.
8. Distributions
From time to time, the Directors may authorize the Company to make
distributions to the Members for the purpose of defraying the annual tax
liability caused by the Company's profits. The Company may make other
distributions to the Members if the Members approve such distributions by joint
action. Any distributions shall be made pro-rata to the Members in accordance
with their Membership Interests in the Company.
9. Dissolution
(a) Events Causing Dissolution. The following events (each a
"Dissolution Event") shall cause a dissolution of the Company:
(1) The consent of the Members by joint action.
(2) The withdrawal, expulsion, bankruptcy or dissolution of a Member,
the sale or redemption of a Member's entire Membership Interest, or the
occurrence of any other event which terminates the continued membership of
a Member in the Company pursuant to the LaLLCL.
(3) The entry of a judicial decree of dissolution under Section 1335
of the LaLLCL.
(b) Continuation of the Company. In certain circumstances after a
Dissolution Event, the remaining Members may choose to continue the Company and
the Company shall continue, uninterrupted by the Dissolution Event, as if the
Dissolution Event had not occurred. The remaining Member shall not have this
option after the entry of a judicial decree of dissolution. The remaining
Member may exercise the option only within 90 days after the Dissolution Event
and only if the remaining Member admits at least one additional Member, if the
LaLLCL so requires.
(c) Winding Up the Company. Upon dissolution, the Members shall wind
up the Company and liquidate its assets and liabilities according to Sections
1336 through 1341 of the LaLLCL. After the Dissolution Event and until
completion of the winding up, the Members may continue to conduct the business
of the Company pursuant
-7-
<PAGE>
to the Administrative Provisions of this Agreement. However, the Company shall
not conduct any business that is inimical to the winding up of the Company. The
Members shall at all times retain the maximum limitation of liability with
respect to claims against the Company as is allowed by the LaLLCL. This
limitation of liability shall not be diminished by the fact that Members have
not formally commenced the winding up of the Company after a Dissolution Event.
Any action taken by a Member that has the effect of reducing the limitation of
liability available under the LaLLCL shall have no effect, and shall be null and
void ab initio unless all Members consent to it.
(d) Gains or Losses in Winding Up. Any gains or losses on disposition
of Company properties in the process of liquidation will be credited or charged
to the Members in the proportion of their Membership Interests. Any property
distributed in kind in the winding up must be valued and treated as though the
property were sold and the cash proceeds were distributed. The difference
between the value of the property distributed in kind and its book value will be
treated as a gain or loss on the sale of the property and credited or charged to
the Members in proportion to their Membership Interests.
10. Restrictions on Transfers of Interests
(a) Transfers Limited. Except as expressly permitted herein, Members
shall not sell, assign, transfer, mortgage, charge or otherwise encumber, or
suffer any third party to sell, assign, transfer, mortgage, charge or otherwise
encumber, or contract to do or permit any of the foregoing, whether voluntarily
or by operation of law (herein sometimes collectively called a "transfer"), any
part or all of their Membership Interests.
(b) Permitted Transfers. Notwithstanding the limitation on transfers
stated in this Agreement, a Member may from time to time transfer all or any
portion of the Member's Membership Interest, if the transfer (1) would not
result in a "termination" under Section 708 of the Internal Revenue Code, (2)
would not leave the Company with fewer than two Members, if the LaLLCL so
requires, and (3) is to any of the following (collectively, "Permitted
Transferees"):
(A) A transferee approved by the other Member,
(B) One or more of the affiliates of a Member (controlled by or under
common control with the Member) at the time of the transfer, or
-8-
<PAGE>
(C) Any other legal entity in which all of the interests are, and will
continue to be, owned by the Member or one or more such
affiliates.
The approval of a transferee in any one or more instances shall not limit or
waive the need for such approval in any other or subsequent instances.
(c) Transferee. If a transfer occurs by operation of law or contrary
to this Agreement's prohibition on certain transfers, and the transferee is not
a Permitted Transferee, the transferee shall not have any right to participate
in the management of the business and affairs of the Company or become a Member.
For purposes of voting, the Membership Interest of the transferring Member shall
not be counted in determining whether votes of the Members constitute joint
actions. A transferee shall only be entitled to receive the share of profits or
other compensation by way of income and the return of contributions to which the
transferring Member would otherwise be entitled. Additionally, the transfer
shall not relieve a transferring Member of any liability hereunder.
(d) Substituted Member. A substituted Member is a person who has been
admitted to all the rights of a Member who has transferred or assigned its
Membership Interests in the Company as provided for herein. The substituted
Member has all the rights and powers and is subject to all the restrictions and
liabilities of his assignor.
(e) Additional Limitations. As a condition to the effectiveness of a
transfer to a Permitted Transferee, the Permitted Transferee shall execute a
ratification of this Agreement and shall deliver it to the other Members. The
other Members may also impose other conditions of transfer and require the
execution and delivery of other agreements as they reasonably determine to be
necessary to avoid the violation of any federal and state law with respect to
the transfer and to evidence the transferee's agreement to be bound by this
Agreement.
11. General Provisions
(a) Choice of Law. The validity of this Agreement is to be determined
under, and the provisions of this Agreement are to be construed in accordance
with, the laws of the State of Louisiana.
(b) Binding Effect. This Agreement is to be binding upon, and inure
to the benefit of the successors and permitted assigns of the Members.
-9-
<PAGE>
(c) Gender and Plurality. Wherever applicable, the pronouns
designating the masculine or neuter will equally apply to the feminine, neuter
or masculine genders. Furthermore, wherever applicable within this Agreement,
the singular will include the plural and vice versa. The term "person" when
used herein shall include a natural person and all forms of entities, including,
without limitation, a corporation, trust, association, partnership, limited
partnership, partnership in commendam, limited liability company or limited
liability partnership.
(d) Notices. All notices, demands, and other writings required
herein, or delivered in connection herewith, may be either delivered in person
or by private courier (which shall be effective upon delivery), by facsimile or
similar communication (which shall be effective upon confirmation of delivery on
the sender's facsimile machine or other communication device), or by prepaid
registered or certified mail (which shall be effective five business days after
being so mailed) to the addresses or facsimile numbers for notice set forth as
follows:
CSNO, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
LRGP Holdings, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
These addresses or facsimile numbers shall continue to constitute the
appropriate ones for notices under this Agreement until the receiving Member
notifies each other Member in writing of a change.
(e) Captions. Article, section and paragraph captions and head notes
are for reference purposes only and will not be considered to affect context.
(f) Severability. If any part of this Agreement is found by a court
of competent jurisdiction to be void, against public policy or otherwise
unenforceable, the part shall be reformed by the court to the extent necessary
to make such provision enforceable. If the entire provision is deemed
unenforceable by the court, the provision shall be deleted. In either event,
this Agreement and each of the remaining provisions of it, as so amended, shall
remain in full force and effect.
(g) Integration. Both this Agreement and the Articles embody the
entire agreement and understanding among the Members and supersede all prior
-10-
<PAGE>
agreements and understandings, if any, among and between Members relating to the
subject matter hereof.
(h) Counterparts. This Agreement may be executed in several
counterparts and that all counterparts so executed are to constitute one
agreement binding all Members, notwithstanding the fact that all Members are not
signatories to the original or to the same counterpart. Any party hereto may
execute this Agreement by facsimile signature or similar form of communication,
and such signature shall be legal and valid for all purposes. Each party so
executing this Agreement shall promptly sign an original hereof and deliver the
originally signed document to the other Member.
-11-
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of CSNO, Inc., as Member, appearing through its undersigned
officer, who acknowledged and declared under oath, in the presence of the two
undersigned witnesses, that the Member signed this Agreement as the Member's
free act and deed for the purposes stated herein.
CSNO, INC.
/s/ Jennie C. Williams /s/ Allan B. Solomon
- ------------------------------ -----------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Lauralee R. Scott
- ------------------------------
Witness
November 7, 1997
-----------------------------------
Date
/s/ Philip deV. Claverie
-------------------------------
NOTARY PUBLIC
Notary's jurisdiction: Louisiana
-------------------
Term expires: at death
----------------------------
-12-
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of LRGP Holdings, Inc., as Member, appearing through its
undersigned officer, who acknowledged and declared under oath, in the presence
of the two undersigned witnesses, that the Member signed this Agreement as the
Member's free act and deed for the purposes stated herein.
LRGP HOLDINGS, INC.
/s/ Jennie C. Williams /s/ Allan B. Solomon
- ------------------------------ ---------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Lauralee R. Scott
- ------------------------------
Witness
November 7, 1997
---------------------------------
Date
/s/ Philip deV. Claverie
--------------------------------
NOTARY PUBLIC
Notary's jurisdiction: Louisiana
--------------------
Term expires: at death
-----------------------------
-13-
<PAGE>
EXHIBIT A TO OPERATING AGREEMENT OF
ISLE OF CAPRI HOTELS - BOSSIER CITY, L.L.C.
Initial Membership Interests and Contributions
<TABLE>
<CAPTION>
Member Percentage Contribution
<S> <C> <C>
CSNO, Inc. 50 $500.00
LRGP Holdings, Inc. 50 $500.00
</TABLE>
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<PAGE>
EXHIBIT 3.15
AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF
LOUISIANA RIVERBOAT GAMING PARTNERSHIP
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT (this "Agreement"),
effective as of May 15, 1997, is entered into by and among CSNO, Inc., and LRGP
Holdings, Inc. (individually, a "Partner" and collectively, the "Partners"),
each appearing through its undersigned officer who personally appeared before
the respective Notaries Public on the dates stated below and declared under oath
that they recite and agree as follows:
1. Formation
The then-partners of the Partnership executed that certain Partnership
Agreement dated as of January 4, 1993, as amended by the First Amendment to
Partnership Agreement effective as of August 31, 1993, as amended by the Second
Amendment to Partnership Agreement effective as of April 20, 1995, as amended by
the Third Amendment to Partnership Agreement effective as of December 29, 1995,
as amended by the Fourth Amendment to Partnership Agreement effective as of
August 6, 1996. The Partners hereby amend and restate the January 4, 1993
Partnership Agreement, as amended, in full, hereby reestablishing the terms of
the operation of Louisiana Riverboat Gaming Partnership (the "Partnership"), a
Louisiana partnership, pursuant to Book III, Title XI of the Louisiana Civil
Code, the Louisiana Partnership law (the "LaPL").
2. Name
The name of the Partnership is and shall be Louisiana Riverboat Gaming
Partnership, and all assets of the Partnership shall be held in and the business
of the Partnership may be conducted under said name or under such other name or
names as the Partners may deem advisable.
3. Principal Place of Business
Both the registered office in Louisiana and the principal business office
of the Partnership (the "Principal Business Office") shall be located at 711
Isle Of Capri
<PAGE>
Boulevard, Bossier City, Louisiana 71111, or at such other location as may be
designated by the Partners from time to time.
4. Purpose
The only purposes for which the Partnership is created and is to exist are:
(i) to acquire, construct, develop and equip an Excursion Gambling Boat or
Boats, including a dock or mooring facility for the Boat(s), with respect to the
proposed operation of the Boat(s) from a facility or dock in Bossier City,
Louisiana, (ii) to acquire, construct, develop and equip a land based facility
with gaming devices, when permitted by law, and (iii) to own and operate,
directly or indirectly, a riverboat casino and related facilities in Lake
Charles, Calcasieu Parish, Louisiana. Each of the Partners agrees to use its
best efforts to secure the necessary governmental and other approvals, permits
and licenses for the accomplishment of these purposes. The Partnership shall not
engage in any business or activity other than those reasonably incidental to the
implementation of the foregoing purposes without written consent of the
Partners.
5. Accounting and Reports for the Partnership
(a) Records and Accounting. The books and records of the Partnership shall
be kept, and the financial position and the results of its operations recorded,
in accordance with the accounting methods selected by the Directors from time to
time, and if not so selected, the books and records shall be maintained in
accordance with generally accepted accounting principles consistently applied.
The books and records of the Partnership shall reflect all the Partnership's
transactions and shall be appropriate and adequate for the Partnership's
business. The accounting year of the Partnership for financial reporting and for
federal income tax purposes shall be consistent with that of the Partners.
(b) Access to Accounting Records. All books, records, files, securities and
other documents or information maintained by the Partnership shall be maintained
at the Principal Business Office or at any other office of the Partnership
agreed to by the Directors and each Partner, as well as its duly authorized
representative(s), shall have access to all books and records at the offices of
the Partnership and the right to inspect and copy them at reasonable times and
upon reasonable notice. Notwithstanding the foregoing, each Partner shall have
the inspection rights granted by Article 2813 of the LaPL.
(c) Outside Consultants. The Partnership may obtain the services of outside
accountants, attorneys and other consultants.
<PAGE>
(d) Reports. The Partnership shall use its best efforts to send the
following information to each person who was a Partner at any time during the
year then ended:
(1) Such tax information regarding all items attributable to the
Partnership as shall be necessary for inclusion in federal income tax
returns by the Partners.
(2) The balance sheet of the Partnership as of the end of such year
and statements of operations and changes in Partners' capital
contributions, prepared in accordance with the accounting method selected.
The information shall also set forth distributions to the Partners for the
period covered thereby and the amount of any distributions released from
reserves established in prior periods.
6. Partnership Interests and Capital Accounts
(a) Partnership Interests and Organization. Exhibit A to this Agreement
states (1) the relative interests of each Partner (the "Partnership Interests")
in the Partnership, and (2) the initial contribution of cash or property of each
Partner.
(b) Certificates for Partnership Interests. The Partnership Interests shall
not be represented by any certificate of partnership or other evidence of
partnership other than this Agreement.
(c) Addition to or Withdrawal of Capital Contributions. Additional capital
may be contributed to the Partnership, or capital may be withdrawn, but only as
authorized by appropriate administrative actions under this Agreement.
(d) Capital Accounts. The capital accounts of the Partners shall initially
be set as determined by the accountants for the Partnership or by written
unanimous consent of the Partners, and a Partner's capital account shall, from
time to time, be:
(1) Increased by:
-3-
<PAGE>
(A) Any additional capital contributions of the Partner as authorized
by appropriate administrative actions under this Agreement;
(B) The Partner's share of profits of the Partnership, determined
pursuant to this Agreement, during each fiscal year, whether or
not distributed; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Partnership) contributed by the Partner; or
(2) Decreased by:
(A) All distributions, whether of the capital or income, to or for
the account of the Partner (other than payments received by the
Partner in repayment of any loan);
(B) The Partner's share of losses of the Partnership determined
during each fiscal year pursuant to this Agreement; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Partner) distributed by the Partnership to the
Partner.
The foregoing provisions are intended to comply with the provisions contained in
Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code"), and capital accounts shall be
maintained in accordance with these provisions.
7. Administrative Provisions
(a) Directors. All powers shall be vested in, and the business and affairs
of the Partnership shall be managed by, a Board of Directors of not less than
three, nor more than seven. At each annual meeting, the Partners shall determine
the number of Directors. The number of Directors may be increased by the
Partners or by the Directors or may be decreased by the Partners or in the event
of any vacancy or vacancies, by the Directors to eliminate such vacancies. Any
decrease in the number of Directors by the
-4-
<PAGE>
Partners shall have the effect of terminating the term of office of all
Directors unless the effect of such decrease is merely to eliminate a vacancy or
vacancies. If such decrease terminating the term of office of all Directors is
effected at a meeting of Partners, the new Directors shall be elected at such
meeting. Each Director shall hold office until the annual meeting held next
after his election and until his successor shall have been elected and
qualified, until he shall resign or until he shall have been removed by the
Partners in the manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by reason of
death, resignation, removal or otherwise or if a newly created directorship
results from an increase in the number of Directors, such vacancy may be filled
for the unexpired term by a majority vote of the Directors then in office or by
the sole remaining Director, although less than a quorum exists. Each person so
elected shall be a Director until his successor is elected by the Partners, who
may make such election at their next annual meeting or any special meeting duly
called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be held
at such time and place as may from time to time be determined by the Directors.
No notice need be given of any regular meeting. Special meetings of the
Directors may be held at such time and place as may be designated in the notice
or the waiver of notice of the meeting. Special meetings of the Directors may be
called by the Chairman of the Board, the President, by any two (2) Directors, or
by any one (1) Director when there are two (2) Directors or less then serving.
Unless notice shall be waived by all Directors, notice of any special meeting
(including a statement of the purposes thereof) shall be given to each Director
at least twenty-four (24) hours in advance of the meeting if oral or two (2)
days in advance of the meeting if by mail, telegraph or other written
communication. Attendance at a meeting by any Director, without objection in
writing by him, shall constitute his waiver of notice of such meeting. A
majority of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that if any vacancies exist by
reason of death, resignation, removal or otherwise, a majority of the remaining
Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must agree
to provide such background information, including a financial statement, and
consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Partnership does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of
-5-
<PAGE>
time any necessary approval by gaming regulatory authorities in any such state
or other jurisdiction, then such Director shall, if so requested by a majority
of the remaining Directors, resign as a Director. If and to the extent required
by the gaming regulatory authorities of any state or other jurisdiction in which
the Partnership does or proposes to do business, or of any state or jurisdiction
whose laws or regulations are otherwise applicable to the Partnership, such
Director shall abstain from participating in any action with respect to
operations of the Partnership in such state or jurisdiction pending such
background check or approval.
(e) Officers. The Partnership shall have officers elected by the Directors.
Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporate Law.
(f) Authorizing Action. Any action to be taken by the Partners under the
LaPL or this Agreement may be taken (1) at a meeting of the Partners, held on
such terms and after notice required by this Agreement, or (2) by written action
of the Partners. No notice need be given of any action proposed to be taken by
written action, or an approval given by written action, unless specifically
required by this Agreement. Copies of all written actions must be kept with the
records of the Partnership.
(g) Meetings. Meetings of the Partners hereunder will be held upon no less
than seven (7) and no more than forty-five (45) days prior to written notice
delivered in accordance with this Agreement. Any Partner may vote at any meeting
in person or by proxy. Participation in any meeting of the Partners may be in
person or by telephone. Notice of any meeting may be waived in writing, either
before or after the meeting. The presence of a Partner at any meeting shall
constitute a waiver of notice and the form thereof, unless a Partner's presence
at such meeting is solely for the purpose of objecting to the form of notice or
the holding of a meeting without proper notice.
(h) Certificates of Authority. Each of the Partners, the Directors, the
Secretary and the Assistant Secretary is authorized to execute any certificate
confirming the partnership of any Partner (including that of the certifying
Partner), the authenticity of any records of the Partnership or the identity of
any Partner, Director, manager, person or entity authorized to take action on
behalf of the Partnership. Any person dealing with the Partnership may rely
conclusively on any certificate executed by a Partner, Director, the Secretary
or the Assistant Secretary and shall not have any obligation to investigate or
verify the statements in the certificate or the Partner's, Director's, the
Secretary's or the
-6-
<PAGE>
Assistant Secretary's authority to execute the certificate. This conclusive
right to rely applies even in the case of actions listed in Article 2814 of the
LaPL.
(i) Indemnification. The Partnership shall, and hereby does, fully release,
indemnify and hold any Partner, Director, officer, employee or agent of the
Partnership harmless from and against any loss, claim or other liability the
Partner, Director, officer, employee or agent of the Partnership may incur at
any time as a result of the indemnitee's service to the Partnership, to the
fullest extent permitted or required by the LaPL, as amended from time to time.
The Partnership may advance expenses incurred by the indemnitee by appropriate
administrative action under this Agreement following the Partnership's receipt
of the indemnitee's agreement to reimburse the Partnership for the advance in
the event of a determination that the indemnitee is not entitled to
indemnification by the Partnership.
(j) Admission of Additional Partners. The Partners may admit to the
Partnership additional Partners who will participate in the profits, losses,
cash available for distributions, and ownership of the assets of the Partnership
only by joint action of the Partners.
8. Profit or Losses
The net profits or the net losses (and any separately stated items,
including without limitation, depreciation, amortization and tax credits) of the
Partnership shall be allocated to the Partners, pro-rata in accordance with
their Partnership Interests in the Partnership.
9. Distributions
From time to time, the Directors may authorize the Partnership to make
distributions to the Partners for the purpose of defraying the annual tax
liability caused by the Partnership's profits. The Partnership may make other
distributions to the Partners if the Partners approve such distributions by
joint action. Any distributions shall be made pro-rata to the Partners in
accordance with their Partnership Interests in the Partnership.
-7-
<PAGE>
10. Dissolution
(a) Events Causing Dissolution. The following events (each a
"Dissolution Event") shall cause a dissolution of the Partnership:
(1) The consent of the Partners by joint action.
(2) The withdrawal, expulsion, bankruptcy or dissolution of a Partner,
the sale or redemption of a Partner's entire Partnership Interest, or the
occurrence of any other event which terminates the continued partnership of
a Partner in the Partnership pursuant to the LaPL.
(3) The entry of a judicial decree of dissolution under the LaPL.
(b) Continuation of the Partnership. In certain circumstances after a
Dissolution Event, the remaining Partners may choose to continue the Partnership
and the Partnership shall continue, uninterrupted by the Dissolution Event, as
if the Dissolution Event had not occurred. However, the remaining Partner shall
not have this option after the entry of a judicial decree of dissolution. The
remaining Partner may exercise the option only within 90 days after the
Dissolution Event and only if the remaining Partner admits at least one
additional Partner, if the LaPL so requires.
(c) Winding Up the Partnership. Upon dissolution, the Partners shall
wind up the Partnership and liquidate its assets and liabilities according to
Articles 2832 through 2835 of the LaPL. After the Dissolution Event and until
completion of the winding up, the Partners may continue to conduct the business
of the Partnership pursuant to the Administrative Provisions of this Agreement.
However, the Partnership shall not conduct any business that is inimical to the
winding up of the Partnership.
(d) Gains or Losses in Winding Up. Any gains or losses on disposition
of Partnership properties in the process of liquidation will be credited or
charged to the Partners in the proportion of their Partnership Interests. Any
property distributed in kind in the winding up must be valued and treated as
though the property were sold and the cash proceeds were distributed. The
difference between the value of the property distributed in kind and its book
value will be treated as a gain or loss on the sale of the property and credited
or charged to the Partners in proportion to their Partnership Interests.
11. Restrictions on Transfers of Interests
-8-
<PAGE>
(a) Transfers Limited. Except as expressly permitted herein,
Partners shall not sell, assign, transfer, mortgage, charge or otherwise
encumber, or suffer any third party to sell, assign, transfer, mortgage, charge
or otherwise encumber, or contract to do or permit any of the foregoing, whether
voluntarily or by operation of law (herein sometimes collectively called a
"transfer"), any part or all of their Partnership Interests.
(b) Permitted Transfers. Notwithstanding the limitation on transfers
stated in this Agreement, a Partner may from time to time transfer all or any
portion of the Partner's Partnership Interest, if the transfer (1) would not
result in a "termination" under Section 708 of the Internal Revenue Code, (2)
would not leave the Partnership with fewer than two Partners, if the LaPL so
requires, and (3) is to any of the following (collectively, "Permitted
Transferees"):
(A) A transferee approved by the other Partner,
(B) One or more of the affiliates of a Partner (controlled by or
under common control with the Partner) at the time of the
transfer, or
(C) Any other legal entity in which all of the interests are, and
will continue to be, owned by the Partner or one or more such
affiliates.
The approval of a transferee in any one or more instances shall not limit or
waive the need for such approval in any other or subsequent instances.
(c) Transferee. If a transfer occurs by operation of law or contrary
to this Agreement's prohibition on certain transfers, and the transferee is not
a Permitted Transferee, the transferee shall not have any right to participate
in the management of the business and affairs of the Partnership or become a
Partner. For purposes of voting, the Partnership Interest of the transferring
Partner shall not be counted in determining whether votes of the Partners
constitute joint actions. A transferee shall only be entitled to receive the
share of profits or other compensation by way of income and the return of
contributions to which the transferring Partner would otherwise be entitled.
Additionally, the transfer shall not relieve a transferring Partner of any
liability hereunder.
-9-
<PAGE>
(d) Substituted Partner. A substituted Partner is a person who has
been admitted to all the rights of a Partner who has transferred or assigned its
Partnership Interests in the Partnership as provided for herein. The
substituted Partner has all the rights and powers and is subject to all the
restrictions and liabilities of his assignor.
(e) Additional Limitations. As a condition to the effectiveness of a
transfer to a Permitted Transferee, the Permitted Transferee shall execute a
ratification of this Agreement and shall deliver it to the other Partners. The
other Partners may also impose other conditions of transfer and require the
execution and delivery of other agreements as they reasonably determine to be
necessary to avoid the violation of any federal and state law with respect to
the transfer and to evidence the transferee's agreement to be bound by this
Agreement.
12. General Provisions
(a) Choice of Law. The validity of this Agreement is to be determined
under, and the provisions of this Agreement are to be construed in accordance
with, the laws of the State of Louisiana.
(b) Binding Effect. This Agreement is to be binding upon, and inure
to the benefit of the successors and permitted assigns of the Partners.
(c) Gender and Plurality. Wherever applicable, the pronouns
designating the masculine or neuter will equally apply to the feminine, neuter
or masculine genders. Furthermore, wherever applicable within this Agreement,
the singular will include the plural and vice versa. The term "person" when
used herein shall include a natural person and all forms of entities, including,
without limitation, a corporation, trust, association, partnership, limited
partnership, partnership in commendam, limited liability company or limited
liability partnership.
(d) Notices. All notices, demands, and other writings required
herein, or delivered in connection herewith, may be either delivered in person
or by private courier (which shall be effective upon delivery), by facsimile or
similar communication (which shall be effective upon confirmation of delivery on
the sender's facsimile machine or other communication device), or by prepaid
registered or certified mail (which shall be effective five business days after
being so mailed) to the addresses or facsimile numbers for notice set forth as
follows:
-10-
<PAGE>
CSNO, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
LRGP Holdings, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
These addresses or facsimile numbers shall continue to constitute the
appropriate ones for notices under this Agreement until the receiving Partner
notifies each other Partner in writing of a change.
(e) Captions. Article, section and paragraph captions and head notes
are for reference purposes only and will not be considered to affect context.
(f) Severability. If any part of this Agreement is found by a court
of competent jurisdiction to be void, against public policy or otherwise
unenforceable, the part shall be reformed by the court to the extent necessary
to make such provision enforceable. If the entire provision is deemed
unenforceable by the court, the provision shall be deleted. In either event,
this Agreement and each of the remaining provisions of it, as so amended, shall
remain in full force and effect.
(g) Integration. This Agreement embodies the entire agreement and
understanding among the Partners and supersedes all prior agreements and
understandings, if any, among and between Partners relating to the subject
matter hereof.
(h) Counterparts. This Agreement may be executed in several
counterparts and that all counterparts so executed are to constitute one
agreement binding all Partners, notwithstanding the fact that all Partners are
not signatories to the original or to the same counterpart. Any party hereto
may execute this Agreement by facsimile signature or similar form of
communication, and such signature shall be legal and valid for all purposes.
Each party so executing this Agreement shall promptly sign an original hereof
and deliver the originally signed document to the other Partner.
-11-
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of CSNO, Inc., as Partner, appearing through its undersigned
officer, who acknowledged and declared under oath, in the presence of the two
undersigned witnesses, that the Partner signed this Agreement as the Partner's
free act and deed for the purposes stated herein.
CSNO, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ---------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------
Witness
September 17, 1997
---------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
----------------------------
Term expires: December 21, 1997
-----------------
-12-
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of LRGP Holdings, Inc., as Partner, appearing through its
undersigned officer, who acknowledged and declared under oath, in the presence
of the two undersigned witnesses, that the Partner signed this Agreement as the
Partner's free act and deed for the purposes stated herein.
LRGP HOLDINGS, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ---------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------
Witness
September 17, 1997
------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
----------------------------
Term expires: December 21, 1997
-----------------
-13-
<PAGE>
EXHIBIT A TO AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF LOUISIANA RIVERBOAT
GAMING PARTNERSHIP
Initial Partnership Interests and Contributions
Partner
Percentage Contribution
CSNO, Inc. 50 $1000.00
LRGP Holdings, Inc. 50 $1000.00
-14-
<PAGE>
Exhibit 3.16
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF ORGANIZATION
OF
LRG HOTELS, L.L.C.
LRG Hotels, L.L.C., a Louisiana limited liability company (the "Company"),
through Allan B. Solomon, a member of the Company's Executive Management
Committee and by authority of its members, does hereby certify that:
FIRST: CSNO, Inc., a Louisiana corporation ("CSNO") and LRGP Holdings,
Inc., a Louisiana corporation ("Holdings"), the members of the Company, adopted
the following resolutions to amend the Company's Articles of Organization as in
effect prior to the date hereof (the "Articles"), by written consent dated
August 6, 1996. The amendments to the Articles set forth herein accurately set
forth the amendments adopted by CSNO and Holdings.
SECOND: The amendments have been effected in conformity with law.
RESOLVED, that Article IV of the Company's Articles is hereby amended to
read as follows:
The members of the LRG Hotels, L.L.C. shall be CSNO, Inc. and LRGP
Holdings, Inc., and their respective successors and assigns.
711 Washington, Biloxi, MS 39531
RESOLVED, that Article VII of the Company's Articles is hereby deleted in
its entirety.
IN WITNESS WHEREOF the undersigned has executed these Articles of Amendment
to the Company's Articles in accordance with law on August 6, 1996.
WITNESSES: LRG HOTELS, L.L.C.
/s/ R.A. Neistro By: /s/ Allan B. Solomon
--------------------- ------------------------
ALLAN B. SOLOMON, Members of the Executive
Management Committee
/s/ Nyka Scott
---------------------
<PAGE>
ARTICLES OF ORGANIZATION
OF LRG HOTELS, L.L.C.
STATE OF LOUISIANA
PARISH OF BOSSIER
BE IT KNOWN that on the 23rd day of June 1993, before me, the undersigned
Notary Public, personally came and appeared LOUISIANA RIVER SITE DEVELOPMENT,
INC. (LRSD), a Louisiana corporation, LRSD appearing herein through its duly
authorized officer, Mr. Gerald Wiemann, Vice President, and CSNO, INC. (CSNO), a
Louisiana corporation, appearing through its duly authorized officer, Mr. Allan
B. Solomon, Secretary-Treasurer, each of whom declared to me, in the presence of
the undersigned competent witnesses, that they wish to avail themselves of the
provisions of the Louisiana limited liability law, LSA-R.S. 12:1301, et seq.,
and who hereby declare that LRSD and CSNO do hereby organize a limited liability
company pursuant to that law under and in accordance with the following Articles
of Organization:
ARTICLE I: NAME
-----------------
The name of this limited liability company is LRG HOTELS, L.L.C.
ARTICLE II: PURPOSE
--------------------
The purpose of this limited liability company is to engage in any business
lawful under the laws of the State of Louisiana, either for its own account or
for the account of others, as agent, and either as agent or principal, to enter
upon or engage in any kind of business of any nature whatsoever, in which
corporations organized under the Louisiana limited liability law may engage, and
to the extent not prohibited thereby to enter upon and engage in any kind of
business of any
<PAGE>
nature whatsoever in any other State of the United States of America, any
foreign nation, and any territory of any country to the extent permitted by the
laws of such other State, nation or territory.
ARTICLE III: DURATION
----------------------
The duration of this limited liability company shall be perpetuity, or such
maximum period as may by authorized by the Louisiana limited liability law.
ARTICLE IV: MEMBERS
--------------------
The members of LRG Hotels, L.L.C. shall be Louisiana River Site
Development, Inc. and CSNO, Inc., both presently Louisiana corporations.
ARTICLE V: MANAGERS
--------------------
LRG Hotels, L.L.C., shall have as many managers as shall be designed in the
Operating Agreement or, if not so designated, as shall be elected from time to
time by the members.
ARTICLE VI: MEMBER APPROVAL OF CERTAIN ACTIONS
-----------------------------------------------
The unanimous affirmative vote of both members, made in accordance with the
respective Articles of Incorporation and By-Laws of each respective member,
shall be necessary for the following actions to be taken by or on behalf of LRG
Hotels, L.L.C.:
A. Amendment to these Articles of Organization.
B. Merger or consolidation of LRG Hotels, L.L.C. with any other legal
entity.
C. Sale, lease, exchange or mortgage the major portion or all of the
property or assets of LRG Hotels, L.L.C.
D. Dissolution of LRG Hotels, L.L.C.
ARTICLE VII: PREREQUISITES TO CERTAIN ACTIONS
----------------------------------------------
2
<PAGE>
No manager position or office shall be created or abolished and no change
shall be made in the compensation, tenure, status, or conditions of employment
of any managers, except by unanimous vote of all members in the manner set forth
in the preceding article.
LRG Hotels, L.L.C. shall not sell or convey its property, rights,
privileges or franchises, or any interest therein or part thereof, without
unanimous consent of all members.
No other person, corporation, partnership, or other individual or legal
entity shall be made or allowed to become a member of LRG Hotels, L.L.C. without
the unanimous consent of Louisiana River Site Development, Inc. and CSNO, Inc.
in the manner set forth in the preceding article.
This article shall not be amended except by the affirmative vote of all
members of LRG Hotels, L.L.C. in the manner set forth in the preceding article.
THUS DONE AND SIGNED at Bossier City, Bossier Parish, Louisiana, this 23rd
day of June 1993, in the presence of the undersigned competent witnesses and me,
Notary, after due reading of the whole.
WITNESSES LOUISIANA RIVER SITE DEVELOPMENT, INC., A
LOUISIANA CORPORATION - MEMBER
/s/ Tracy E. Guerrera
- --------------------------
BY: /s/ Gerald Wiemann
--------------------------------------
GERALD WIEMANN, VICE PRESIDENT
/s/ Lisa M. Graham
- --------------------------
/s/ Elaine M. Hulen
---------------------------
NOTARY PUBLIC
-------------
(Notary Seal)
3
<PAGE>
EXHIBIT 3.17
AMENDED AND RESTATED OPERATING AGREEMENT OF
LRG HOTELS, L.L.C.
THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement"),
effective as of March 15, 1997, is entered into by and among CSNO, Inc. and LRGP
Holdings, Inc. (individually, a "Member" and collectively, the "Members"), each
appearing through its undersigned officer who personally appeared before the
respective Notaries Public on the dates stated below and declared under oath
that they recite and agree as follows:
1. Formation
The then-Members of the Company executed that certain Operating
Agreement dated as of June 30, 1993, as amended by First Amendment to Operating
Agreement effective as of July 2, 1996. The Members hereby amend and restate
the June 30, 1993 Operating Agreement, as amended, in full, hereby
reestablishing the terms of the operation of LRG Hotels, L.L.C. (the "Company"),
a Louisiana limited liability company, pursuant to Title 12, Chapter 22 of the
Louisiana Revised Statutes, the Louisiana Limited Liability Company law (the
"LaLLCL"). They unconditionally ratify, confirm and adopt the Articles of
Organization dated June 23, 1993, as amended by Articles of Amendment to the
Articles of Organization dated August 6, 1996 (collectively, the "Articles") and
the Initial Report of the Company executed on June 23, 1993, as amended by
Amended Initial Report executed contemporaneously with this Agreement, in full.
2. Principal Place of Business
Both the registered office in Louisiana and the principal business
office of the Company (the "Principal Business Office") shall be located at 3033
Hilton Drive, Bossier City, Louisiana 71111, or at such other location as may be
designated by the Members from time to time.
3. Release of Organizer
With their adoption of the Articles and the Initial Report, the
Members hereby unconditionally ratify, confirm and adopt all actions of the
Organizer to date. They further relieve the Organizer of any further duties or
obligations to the Company as of the date of this Agreement and agree that the
Company shall, and hereby does, fully
<PAGE>
release, indemnify and hold the Organizer harmless from and against any loss,
claim or other liability the Organizer may incur at any time as a result of the
Organizer's service to the Company.
4. Accounting and Reports for the Company
(a) Records and Accounting. The books and records of the Company
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Company shall reflect all
the Company's transactions and shall be appropriate and adequate for the
Company's business. The accounting year of the Company for financial reporting
and for federal income tax purposes shall be consistent with that of the
Members.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Company shall be
maintained at the Principal Business Office or at any other office of the
Company agreed to by the Directors, and each Member, as well as its duly
authorized representative, shall have access to all books and records at the
offices of the Company and the right to inspect and copy them at reasonable
times and upon reasonable notice. Notwithstanding the foregoing, each Member
shall have the inspection rights granted by, and the Company shall maintain at
its registered office the records listed in, Section 1319 of the LaLLCL.
(c) Outside Consultants. The Company may obtain the services of
outside accountants, attorneys and other consultants.
(d) Reports. The Company shall use its best efforts to send the
following information to each person who was a Member at any time during the
year then ended:
(1) Such tax information regarding all items attributable to the
Company as shall be necessary for inclusion in federal income tax returns
by the Members.
(2) The balance sheet of the Company as of the end of such year and
statements of operations and changes in Members' capital contributions,
prepared in accordance with the accounting method selected. The
information shall also set forth distributions to the Members for the
period
2
<PAGE>
covered thereby and the amount of any distributions released from
reserves established in prior periods.
5. Membership Interests and Capital Accounts
(a) Membership Interests and Organization. Exhibit A to this
Agreement states (1) the relative interests of each Member (the "Membership
Interests") in the Company, and (2) the initial contribution of cash or property
of each Member.
(b) Certificates for Membership Interests. The Membership Interests
shall not be represented by any certificate of membership or other evidence of
membership other than the Articles and this Agreement.
(c) Addition to or Withdrawal of Capital Contributions. Additional
capital may be contributed to the Company, or capital may be withdrawn, but only
as authorized by appropriate administrative actions under this Agreement.
(d) Capital Accounts. The capital accounts of the Members shall
initially be set as determined by the accountants for the Company or by written
unanimous consent of the Members, and a Member's capital account shall, from
time to time, be:
(1) Increased by:
(A) Any additional capital contributions of the Member as authorized
by appropriate administrative actions under this Agreement;
(B) The Member's share of profits of the Company, determined pursuant
to this Agreement, during each fiscal year, whether or not
distributed; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Company) contributed by the Member; or
(2) Decreased by:
(A) All distributions, whether of the capital or income, to or for
the account of the Member (other than payments received by the
Member in repayment of any loan);
3
<PAGE>
(B) The Member's share of losses of the Company determined during
each fiscal year pursuant to this Agreement; and
(C) The agreed fair market value of any property (less liabilities
assumed by the Member) distributed by the Company to the Member.
The foregoing provisions are intended to comply with the provisions contained in
Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986,
as amended (the "Internal Revenue Code"), and capital accounts shall be
maintained in accordance with these provisions.
6. Administrative Provisions
(a) Directors. All powers shall be vested in, and the business and
affairs of the Company shall be managed by, a Board of Directors of not less
than three, nor more than seven. At each annual meeting, the Members shall
determine the number of Directors. The number of Directors may be increased by
the Members or by the Directors or may be decreased by the Members, or in the
event of any vacancy or vacancies, by the Directors to eliminate such vacancies.
Any decrease in the number of Directors by the Members shall have the effect of
terminating the term of office of all Directors unless the effect of such
decrease is merely to eliminate a vacancy or vacancies. If such decrease
terminating the term of office of all Directors is effected at a meeting of
Members, the new Directors shall be elected at such meeting. Each Director
shall hold office until the annual meeting held next after his election and
until his successor shall have been elected and qualified, until he shall resign
or until he shall have been removed by the Members in the manner provided by
law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Members, who may make such election at their next annual meeting or any special
meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice
4
<PAGE>
of the meeting. Special meetings of the Directors may be called by the Chairman
of the Board, the President, by any two (2) Directors, or by any one (1)
Director when there are two (2) Directors or less then serving. Unless notice
shall be waived by all Directors, notice of any special meeting (including a
statement of the purposes thereof) shall be given to each Director at least
twenty-four (24) hours in advance of the meeting if oral or two (2) days in
advance of the meeting if by mail, telegraph or other written communication.
Attendance at a meeting by any Director, without objection in writing by him,
shall constitute his waiver of notice of such meeting. A majority of the total
number of Directors shall constitute a quorum for the transaction of business;
provided, however, that if any vacancies exist by reason of death, resignation,
removal or otherwise, a majority of the remaining Directors shall constitute a
quorum for the purpose of filling of such vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Company does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Company does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Company, such Director shall abstain
from participating in any action with respect to operations of the Company in
such state or jurisdiction pending such background check or approval.
(e) Officers. The Company shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporation Law. The officers shall not, however,
be managers under the LaLLCL.
(f) Authorizing Action. Any action to be taken by the Members under
the LaLLCL or this Agreement may be taken (1) at a meeting of the Members, held
on such terms and after notice required by this Agreement, or (2) by written
action of the Members. No notice need be given of any action proposed to be
taken by written action, or an approval given by written action, unless
specifically required by the LaLLCL or this Agreement. Copies of all written
actions must be kept with the records of the Company.
5
<PAGE>
(g) Meetings. Meetings of the Members hereunder will be held upon no
less than seven (7) and no more than forty-five (45) days prior to written
notice delivered in accordance with this Agreement. Any Member may vote at any
meeting in person or by proxy. Participation in any meeting of the Members may
be in person or by telephone. Notice of any meeting may be waived in writing,
either before or after the meeting. The presence of a Member at any meeting
shall constitute a waiver of notice and the form thereof, unless a Member's
presence at such meeting is solely for the purpose of objecting to the form of
notice or the holding of a meeting without proper notice.
(h) Certificates of Authority. In accordance with Section
12:1305(C)(5) of the LaLLCL, each of the Members, the Directors, the Secretary
and the Assistant Secretary is authorized to execute any certificate confirming
the membership of any Member (including that of the certifying Member), the
authenticity of any records of the Company or the identity of any Member,
Director, manager, person or entity authorized to take action on behalf of the
Company. Any person dealing with the Company may rely conclusively on any
certificate executed by a Member, Director, the Secretary or the Assistant
Secretary and shall not have any obligation to investigate or verify the
statements in the certificate or the Member's, Director's, the Secretary's or
the Assistant Secretary's authority to execute the certificate. This conclusive
right to rely applies even in the case of actions listed in Section 1318(B) of
the LaLLCL.
(i) Indemnification. The Company shall, and hereby does, fully
release, indemnify and hold any Member, Director, officer, employee or agent of
the Company harmless from and against any loss, claim or other liability the
Member, Director, officer, employee or agent of the Company may incur at any
time as a result of the indemnitee's service to the Company, to the fullest
extent permitted or required by the LaLLCL, as amended from time to time. The
Company may advance expenses incurred by the indemnitee by appropriate
administrative action under this Agreement following the Company's receipt of
the indemnitee's agreement to reimburse the Company for the advance in the event
of a determination that the indemnitee is not entitled to indemnification by the
Company.
(j) Admission of Additional Members. The Members may admit to the
Company additional Members who will participate in the profits, losses, cash
available for distributions, and ownership of the assets of the Company only by
joint action of the Members.
7. Profit or Losses
6
<PAGE>
The net profits or the net losses (and any separately stated items,
including without limitation, depreciation, amortization and tax credits) of the
Company shall be allocated to the Members, pro-rata in accordance with their
Membership Interests in the Company.
8. Distributions
From time to time, the Directors may authorize the Company to make
distributions to the Members for the purpose of defraying the annual tax
liability caused by the Company's profits. The Company may make other
distributions to the Members if the Members approve such distributions by joint
action. Any distributions shall be made pro-rata to the Members in accordance
with their Membership Interests in the Company.
9. Dissolution
(a) Events Causing Dissolution. The following events (each a
"Dissolution Event") shall cause a dissolution of the Company:
(1) The consent of the Members by joint action.
(2) The withdrawal, expulsion, bankruptcy or dissolution of a Member,
the sale or redemption of a Member's entire Membership Interest, or the
occurrence of any other event which terminates the continued membership of
a Member in the Company pursuant to the LaLLCL.
(3) The entry of a judicial decree of dissolution under Section 1335
of the LaLLCL.
(b) Continuation of the Company. In certain circumstances after a
Dissolution Event, the remaining Members may choose to continue the Company and
the Company shall continue, uninterrupted by the Dissolution Event, as if the
Dissolution Event had not occurred. The remaining Member shall not have this
option after the entry of a judicial decree of dissolution. The remaining
Member may exercise the option only within 90 days after the Dissolution Event
and only if the remaining Member admits at least one additional Member, if the
LaLLCL so requires.
(c) Winding Up the Company. Upon dissolution, the Members shall wind
up the Company and liquidate its assets and liabilities according to Sections
1336
7
<PAGE>
through 1341 of the LaLLCL. After the Dissolution Event and until completion of
the winding up, the Members may continue to conduct the business of the Company
pursuant to the Administrative Provisions of this Agreement. However, the
Company shall not conduct any business that is inimical to the winding up of the
Company. The Members shall at all times retain the maximum limitation of
liability with respect to claims against the Company as is allowed by the
LaLLCL. This limitation of liability shall not be diminished by the fact that
Members have not formally commenced the winding up of the Company after a
Dissolution Event. Any action taken by a Member that has the effect of reducing
the limitation of liability available under the LaLLCL shall have no effect, and
shall be null and void ab initio unless all Members consent to it.
(d) Gains or Losses in Winding Up. Any gains or losses on disposition
of Company properties in the process of liquidation will be credited or charged
to the Members in the proportion of their Membership Interests. Any property
distributed in kind in the winding up must be valued and treated as though the
property were sold and the cash proceeds were distributed. The difference
between the value of the property distributed in kind and its book value will be
treated as a gain or loss on the sale of the property and credited or charged to
the Members in proportion to their Membership Interests.
10. Restrictions on Transfers of Interests
(a) Transfers Limited. Except as expressly permitted herein, Members
shall not sell, assign, transfer, mortgage, charge or otherwise encumber, or
suffer any third party to sell, assign, transfer, mortgage, charge or otherwise
encumber, or contract to do or permit any of the foregoing, whether voluntarily
or by operation of law (herein sometimes collectively called a "transfer"), any
part or all of their Membership Interests.
(b) Permitted Transfers. Notwithstanding the limitation on transfers
stated in this Agreement, a Member may from time to time transfer all or any
portion of the Member's Membership Interest, if the transfer (1) would not
result in a "termination" under Section 708 of the Internal Revenue Code, (2)
would not leave the Company with fewer than two Members, if the LaLLCL so
requires, and (3) is to any of the following (collectively, "Permitted
Transferees"):
(A) A transferee approved by the other Member,
(B) One or more of the affiliates of a Member (controlled by or under
common control with the Member) at the time of the transfer, or
8
<PAGE>
(C) Any other legal entity in which all of the interests are, and
will continue to be, owned by the Member or one or more such
affiliates .
The approval of a transferee in any one or more instances shall not limit or
waive the need for such approval in any other or subsequent instances.
(c) Transferee. If a transfer occurs by operation of law or contrary
to this Agreement's prohibition on certain transfers, and the transferee is not
a Permitted Transferee, the transferee shall not have any right to participate
in the management of the business and affairs of the Company or become a Member.
For purposes of voting, the Membership Interest of the transferring Member shall
not be counted in determining whether votes of the Members constitute joint
actions. A transferee shall only be entitled to receive the share of profits or
other compensation by way of income and the return of contributions to which the
transferring Member would otherwise be entitled. Additionally, the transfer
shall not relieve a transferring Member of any liability hereunder.
(d) Substituted Member. A substituted Member is a person who has been
admitted to all the rights of a Member who has transferred or assigned its
Membership Interests in the Company as provided for herein. The substituted
Member has all the rights and powers and is subject to all the restrictions and
liabilities of his assignor.
(e) Additional Limitations. As a condition to the effectiveness of a
transfer to a Permitted Transferee, the Permitted Transferee shall execute a
ratification of this Agreement and shall deliver it to the other Members. The
other Members may also impose other conditions of transfer and require the
execution and delivery of other agreements as they reasonably determine to be
necessary to avoid the violation of any federal and state law with respect to
the transfer and to evidence the transferee's agreement to be bound by this
Agreement.
11. General Provisions
(a) Choice of Law. The validity of this Agreement is to be determined
under, and the provisions of this Agreement are to be construed in accordance
with, the laws of the State of Louisiana.
(b) Binding Effect. This Agreement is to be binding upon, and inure
to the benefit of the successors and permitted assigns of the Members.
9
<PAGE>
(c) Gender and Plurality. Wherever applicable, the pronouns
designating the masculine or neuter will equally apply to the feminine, neuter
or masculine genders. Furthermore, wherever applicable within this Agreement,
the singular will include the plural and vice versa. The term "person" when
used herein shall include a natural person and all forms of entities, including,
without limitation, a corporation, trust, association, partnership, limited
partnership, partnership in commendam, limited liability company or limited
liability partnership.
(d) Notices. All notices, demands, and other writings required
herein, or delivered in connection herewith, may be either delivered in person
or by private courier (which shall be effective upon delivery), by facsimile or
similar communication (which shall be effective upon confirmation of delivery on
the sender's facsimile machine or other communication device), or by prepaid
registered or certified mail (which shall be effective five business days after
being so mailed) to the addresses or facsimile numbers for notice set forth as
follows:
CSNO, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
LRGP Holdings, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
These addresses or facsimile numbers shall continue to constitute the
appropriate ones for notices under this Agreement until the receiving Member
notifies each other Member in writing of a change.
(e) Captions. Article, section and paragraph captions and head notes
are for reference purposes only and will not be considered to affect context.
(f) Severability. If any part of this Agreement is found by a court
of competent jurisdiction to be void, against public policy or otherwise
unenforceable, the part shall be reformed by the court to the extent necessary
to make such provision enforceable. If the entire provision is deemed
unenforceable by the court, the provision shall be deleted. In either event,
this Agreement and each of the remaining provisions of it, as so amended, shall
remain in full force and effect.
(g) Integration. Both this Agreement and the Articles embody the
entire agreement and understanding among the Members and supersede all prior
agreements and
10
<PAGE>
understandings, if any, among and between Members relating to the subject matter
hereof.
(h) Counterparts. This Agreement may be executed in several
counterparts and that all counterparts so executed are to constitute one
agreement binding all Members, notwithstanding the fact that all Members are not
signatories to the original or to the same counterpart. Any party hereto may
execute this Agreement by facsimile signature or similar form of communication,
and such signature shall be legal and valid for all purposes. Each party so
executing this Agreement shall promptly sign an original hereof and deliver the
originally signed document to the other Member.
11
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of CSNO, Inc., as Member, appearing through its undersigned
officer, who acknowledged and declared under oath, in the presence of the two
undersigned witnesses, that the Member signed this Agreement as the Member's
free act and deed for the purposes stated herein.
CSNO, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ----------------------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------------------------
Witness
September 15, 1997
---------------------------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
-------------------------------------
Term expires: December 21, 1997
----------------------------------------------
12
<PAGE>
THUS DONE AND PASSED, on the date stated below, before me, the
undersigned Notary Public, duly commissioned and qualified in and for the parish
or county and the state of the Notary's jurisdiction as stated below, by the
personal appearance of LRGP Holdings, Inc., as Member, appearing through its
undersigned officer, who acknowledged and declared under oath, in the presence
of the two undersigned witnesses, that the Member signed this Agreement as the
Member's free act and deed for the purposes stated herein.
LRGP HOLDINGS, INC.
/s/ Kyra H. Monk /s/ Allan B. Solomon
- ----------------------------- ---------------------------------------
Witness Allan B. Solomon
Executive Vice President, General
Counsel and Secretary
/s/ Witness
- -----------------------------
Witness
September 15, 1997
---------------------------------------
Date
/s/ Michelle Annette Goodman
----------------------------
NOTARY PUBLIC
Notary's jurisdiction: Mississippi
-------------------------------------
Term expires: December 21, 1997
----------------------------------------------
13
<PAGE>
EXHIBIT A TO AMENDED AND RESTATED
OPERATING AGREEMENT OF
LRG HOTELS, L.L.C.
Current Membership Interests
<TABLE>
<CAPTION>
Member Percentage Contribution
<S> <C> <C>
CSNO, Inc. 50 $1,000.00
LRGP Holdings, Inc. 50 $1,000.00
</TABLE>
14
<PAGE>
Exhibit 3.18
ARTICLES OF INCORPORATION
OF
LRGP HOLDINGS, INC.
ARTICLE I
NAME
----
The name of this Corporation is LRGP Holdings, Inc.
ARTICLE II
DURATION
--------
The Corporation shall have perpetual existence.
ARTICLE III
PURPOSE
-------
The purpose for which the Corporation is formed is to engage in any lawful
activity for which corporations may be formed under the laws of the State of
Louisiana.
ARTICLE IV
AUTHORIZED CAPITAL
------------------
The Corporation has authority to issue 1,000 shares of common stock at no
par value per share.
ARTICLE V
INCORPORATOR
------------
The name and address of the incorporator is:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Philip deV. Claverie 400 Poydras Street - 30th Floor
New Orleans, Louisiana 70130
</TABLE>
<PAGE>
ARTICLE VI
DIRECTORS
---------
A. The Board of Directors shall have authority to make and alter by-laws,
including by-laws fixing the directors' qualifications, classifications, number,
powers and duties, terms of office, manner of election and fixing (including
increasing or decreasing, or both) their compensation, subject to the power of
the shareholders to change or repeal by-laws so made.
B. The Board of Directors shall further have authority to exercise all
such other powers and to do all such other lawful acts and things that this
Corporation or its shareholders might do, unless prohibited from doing so by the
Louisiana Business Corporation Law ("LBCL"), by these Articles of Incorporation,
or by the by-laws of the Corporation.
C. Any director absent from a meeting of the Board of Directors or any
committee thereof may be represented by any other director or shareholder, who
may cast the vote of the absent director according to the written instructions,
general or special, of said absent director, filed with the Secretary of the
Corporation.
ARTICLE VII
ISSUANCE OF STOCK
-----------------
Without any necessity of action by the shareholders, previously authorized
but unissued shares of stock of the Corporation may be issued from time to time
by the Board of Directors, and any and all shares so issued and paid for shall
be deemed full paid stock and not liable for any further assessment or call, and
the holder of such shares shall not be liable for any further payment thereon.
ARTICLE VIII
PURCHASE AND REDEMPTION OF SHARES
---------------------------------
The Corporation may purchase or redeem its own shares, or both, in the
manner and under the conditions provided in Section 55 of the LBCL. Such shares
so purchased (unless it is desired that such shares be canceled) shall be
considered treasury shares and may be reissued and disposed of as authorized by
law, or may be canceled and the capital stock reduced, as the Board of Directors
may, from time to time, determine.
2
<PAGE>
ARTICLE IX
LIMITATION OF LIABILITY
-----------------------
No director or officer of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director or officer, except for liability (i) for breach of the
director's or officer's duty of loyalty to this Corporation or its shareholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under Section 92(D) of the LBCL,
or (iv) for any transaction from which the director or officer derived an
improper personal benefit. If the LBCL is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of
directors and officers, then the liability of each director and officer of this
Corporation shall be limited or eliminated to the fullest extent permitted by
the LBCL, as so amended from time to time. Neither the amendment nor repeal of
this Article, nor the adoption of any provision of this Corporation's Articles
of Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article, would accrue or arise, prior
to such amendment, repeal or adoption of any inconsistent provision.
ARTICLE X
PRE-EMPTIVE RIGHTS
------------------
Shareholders shall have pre-emptive rights except as restricted by any
shareholders' agreement executed by the shareholders.
ARTICLE XI
CUMULATIVE VOTING
-----------------
In the election of directors, each shareholder of record shall have the
right to multiply the number of votes to which he or she is entitled by the
number of directors to be elected, and to cast all such votes for one candidate,
or distribute them among any two or more candidates.
ARTICLE XII
CONSENT OF SHAREHOLDERS
-----------------------
Any action required to be taken at any meeting of the shareholders, or any
other action which may be taken at a meeting of the shareholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so
3
<PAGE>
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall, within sixty (60) days of the earliest consent so executed,
be delivered to the Corporation by delivery to its registered office in
Louisiana, its Principal Business Office or to the Secretary of the Corporation.
Such written consent shall be filed with the minutes of the meetings of
shareholders. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing thereto.
ARTICLE XIII
AMENDMENT OF ARTICLES
---------------------
An amendment altering the Articles of Incorporation may be adopted pursuant
to a shareholder consent to action provided for by Article XII above, or by a
simple majority of the voting power present at an annual or special meeting of
shareholders, the notice of which sets forth the proposed amendment or a summary
of the changes to be made thereby.
If an amendment would adversely affect the rights of the holders of shares
of any class or series of stock, the holders of each class or series of stock so
affected by the amendment shall be entitled to vote as a class upon such
amendment, and the vote of the holders of a simple majority of the shares of
each class or series so affected by the amendment, present or represented at the
meeting, shall be necessary to the adoption thereof.
ARTICLE XIV
AMENDMENT OF BY-LAWS
--------------------
The shareholders or the Board of Directors, subject to the provisions of
these Articles of Incorporation or the by-laws, may, at any meeting, amend,
alter, or repeal, in whole or in part, any of the by-laws, or adopt new by-laws.
/s/ Philip deV. Claverie
------------------------
Philip deV. Claverie
Sole Incorporator
4
<PAGE>
CERTIFICATE
I, Philip deV. Claverie, being the Sole Incorporator hereinabove named, for
the purpose of forming a corporation pursuant to the Louisiana Business
Corporation Law, do hereby make this certificate, hereby declaring and
certifying that this is my act and deed and the facts herein are true, and
accordingly have hereunto set my hand this 27th day of June, 1995.
/s/ Philip deV. Claverie
------------------------
Philip deV. Claverie
Sole Incorporator
5
<PAGE>
EXHIBIT 3.19
BY-LAWS OF
LRGP HOLDINGS, INC.
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of
LRGP HOLDINGS, INC. (the "Corporation"), a Louisiana corporation, as follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Isle of Capri Boulevard, in the City of Bossier City, State of Louisiana,
(71111) or such other location as may be designated by the Directors from time
to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect
all the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Corporation
shall be maintained at the Principal Business Office or at any other office of
the Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation
shall be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman, President or a Vice President, and by
<PAGE>
the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any
signature upon a certificate may be a facsimile. Certificates on which a
facsimile signature of a former officer, transfer agent or registrar appears may
be issued with the same effect as if he were such officer, transfer agent or
registrar on the date of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder"
shall mean the person, firm or corporation in whose name outstanding shares of
capital stock of the Corporation are currently registered on the stock record
books of the Corporation. A record shall be kept of the name of the person,
firm or corporation owning the stock represented by such certificates, the
respective dates thereof and, in the case of cancellation, the respective dates
of cancellation. Every certificate surrendered to the Corporation for exchange
or transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Directors may require, and shall, if the Directors so
require, give the Corporation a bond of indemnity in form and with one or more
sureties satisfactory to the Directors of at least double the value, as
determined by the Directors, of the stock represented by such certificate in
order to indemnify the Corporation against any claim that may be made against it
on account upon a new certificate may be issued in the same tenor and for the
same number of shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of
Stockholders may be held at such time and place as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof. The annual
meeting of Stockholders shall be held on the date of the annual meeting for
Casino America, Inc. At the annual meeting the Stockholders, voting as provided
in the Articles of Incorporation, shall elect Directors and shall transact such
other business as may properly be brought before the meeting. Special meetings
of the Stockholders entitled to vote shall be called by the Secretary at any
time upon request of the Chairman of the
-2-
<PAGE>
Board of Directors, the President or the Directors (acting upon majority vote)
or upon request by Stockholders holding ten percent (10%) or more of the voting
power of the Stockholders. Meetings of the Stockholders hereunder will be held
upon no less than seven (7) and no more than forty-five (45) days prior written
notice delivered in accordance with these By-Laws. Any Stockholder may vote at
any meeting in person or by proxy. Participation in any meeting of the
Stockholders may be in person or by telephone. Notice of any meeting may be
waived in writing, either before or after the meeting. The presence of a
Stockholder at any meeting shall constitute a waiver of notice and the form
thereof, unless a Stockholder's presence at such meeting is solely for the
purpose of objecting to the form or notice of the holding of a meeting without
proper notice. The holders of a majority of all shares outstanding and entitled
to vote, represented either in person or by proxy, shall constitute a quorum for
the transaction of business at any annual or special meeting of the
Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented
at any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors of not less than three, nor more than seven, except that when all of
the outstanding shares are held of record by fewer than three Stockholders, then
there may be as many Directors as there are Stockholders. At each annual
meeting, the Stockholders shall determine the number of Directors. The number
of Directors may be increased by the Stockholders or by the Directors or may be
decreased by the Stockholders (if there are fewer Stockholders than three), or
in the event of any vacancy or vacancies, by the Directors to eliminate such
vacancies. Any decrease in the number of Directors by the Stockholders shall
have the effect of terminating the term of office of all Directors unless the
effect of such decrease is merely to eliminate a vacancy or vacancies. If
-3-
<PAGE>
such decrease terminating the term of office of all Directors is effected at a
meeting of Stockholders, the new Directors shall be elected at such meeting.
Each Director shall hold office until the annual meeting held next after his
election and until his successor shall have been elected and qualified, until he
shall resign or until he shall have been removed by the Stockholders in the
manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Stockholders, who may make such election at their next annual meeting or any
special meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the
Directors may be called by the Chairman of the Board, the President, by any two
(2) Directors, or by any one (1) Director when there are two (2) Directors or
less then serving. Unless notice shall be waived by all Directors, notice of
any special meeting (including a statement of the purposes thereof) shall be
given to each Director at least twenty-four (24) hours in advance of the meeting
if oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such Director shall
abstain from participating in any action with respect to operations of the
Corporation in such state or jurisdiction pending such background check or
approval.
-4-
<PAGE>
(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Louisiana Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Louisiana
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles
of Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise
ordered by the Directors, the President shall have full power and authority on
behalf of the Corporation (1) to attend and to vote at any meeting of security
holders of other companies in which the Corporation may hold securities; (2) to
execute any proxy for such meeting on behalf of the Corporation and (3) to
execute a written action in lieu of a meeting of such other company on behalf of
this Corporation. At such meeting, by such proxy or by such writing in lieu of
meeting, the President shall possess and may exercise any and all rights and
powers incident to the ownership of such securities that the Corporation might
have possessed and exercised if it
-5-
<PAGE>
had been present. The Directors may, from time to time, confer like powers upon
any other person or persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be
given by these By-Laws, the Articles of Incorporation or any of the Louisiana
Business Corporation Laws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any
committee designated by the Directors, may participate in a meeting of the
Directors or of such committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear and communicate with each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting. The place of
the meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal
or adopt By-Laws at any regular meeting or at any special meeting called for
that purpose, subject to the power of the Stockholders to change or repeal such
By-Laws and subject to any other limitations on such authority of the Directors
provided by the Louisiana Business Corporation Laws.
-6-
<PAGE>
Exhibit 3.20
ARTICLES OF INCORPORATION
OF
PPI, INC.
The undersigned incorporator hereby forms a corporation under Chapter 607
of the laws of the State of Florida.
ARTICLE I. NAME
---------------
The name of the corporation shall be:
PPI, INC.
The address of the principal office of this corporation shall be 2200 Corporate
Boulevard, Northwest, Suite 310, Boca Raton, Florida 33431, and the mailing
address of the corporation shall be the same.
ARTICLE II. NATURE OF BUSINESS
------------------------------
This corporation may engage or transact in any or all lawful activities or
business permitted under the laws of the Untied States, the State of Florida or
any other state, country, territory or nation.
ARTICLE III. CAPITAL STOCK
--------------------------
The maximum number of shares of stock that this corporation is authorized
to have outstanding at any one time is 10,000 shares of common stock having $.01
par value per share.
ARTICLE IV. REGISTERED AGENT
----------------------------
The street address of the initial registered office of the corporation
shall be 1201 Hays Street, Tallahassee, Florida 32301, and the name of the
initial registered agent of the corporation at that address is Corporation
Information Services, Inc.
<PAGE>
ARTICLE V. TERM OF EXISTENCE
----------------------------
This corporation is to exist perpetually.
ARTICLE VI. OFFICERS AND DIRECTORS
----------------------------------
This corporation shall have one officer and one director, initially. The
name and street address of the initial officer and director who shall hold
office for the first year of the corporation, or until his successor is elected
or appointed is:
Allan B. Solomon 2200 Corporate Boulevard, Northwest
Pres./Sec./Treas./Dir. Suite 310
Boca Raton, Florida 33431
ARTICLE VII. INCORPORATOR
-------------------------
The name and street address of the incorporator to these Articles of
Incorporation:
Corporation Information Services, Inc.
1201 Hays Street
Tallahassee, Florida 32301
2
<PAGE>
IN WITNESS WHEREOF, the undersigned agent of Corporation Information
Services, Inc., has hereunto set their hand and seal of Corporation Information
Services, Inc., on November, 14, 1994.
CORPORATION INFORMATION SERVICES, INC.
By: /s/ Gail Shelby
-----------------------------------
Its Agent, Gail Shelby
ACCEPTANCE OF REGISTERED AGENT DESIGNATED
-----------------------------------------
IN ARTICLES OF INCORPORATION
----------------------------
Corporation Information Services, Inc., a Florida corporation authorized to
transact business in this State, having a business office identical with the
registered office of the corporation named above, and having been designated as
the Registered Agent in the above and foregoing Articles, is familiar with and
accepts the obligations of the position of Registered Agent under Section
607.0505, Florida Statutes.
CORPORATION INFORMATION SERVICES, INC.
By: /s/ Gail Shelby
-----------------------------------
Its Agent, Gail Shelby
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EXHIBIT 3.21
BY-LAWS
OF
PPI, INC.
(a Florida corporation
___________________________
ARTICLE I
STOCK CERTIFICATES
------------------
1.1 ISSUANCE. Every holder of shares in this Corporation shall be
--------
entitled to have a certificate, representing all shares to which he is
entitled. No certificate shall be issued for any share until such
share is fully paid.
1.2 FORM. Certificates representing shares in this Corporation shall be
----
signed by the president or vice president and the secretary or an
assistant secretary.
Every certificate representing shares which are restricted as to sale,
disposition or other transfer of such shares shall state that such shares are
restricted as to transfer and shall set forth or fairly summarized upon the
certificate, or shall state that the Corporation will furnish to any shareholder
upon request and without charge a full statement of such restrictions.
Each certificate representing shares shall state upon the face
thereof: The name of the Corporation; that the corporation is organized under
the laws of this State; the name of the person or persons to whom it is issued;
the number and class of shares, and the designation of the series, if any, which
such certificate represents; and the par value of each share represented by such
certificate, or statement that the shares are without par value.
<PAGE>
1.3 TRANSFER OF STOCK. The stock of the Corporation shall be assignable
-----------------
and transferable on the books of the Corporation only by the person in whose
name it appears on said books, his legal representatives or by his duly
authorized agent. In case of transfer by attorney, the power of attorney, duly
executed and acknowledged, shall be deposited with the secretary. In all cases
of transfer, the former certificate must be surrendered up and cancelled before
a new certificate is issued.
1.4 LOST, STOLEN OR DESTROYED CERTIFICATES. If a shareholder shall have
--------------------------------------
claimed to have lost or destroyed a certificate or certificates of stock issued
by the Corporation, the board of directors may direct, at its discretion, a new
certificate or certificates issued, upon the making of an affidavit of the fact
by the person claiming the certificate of stock to be lost or destroyed, and
upon the deposit of a bond or other indemnity in such amount and with such
surety, if any, as the board may require.
1.5 FRACTIONAL SHARE INTEREST. The Corporation may, but shall not be
-------------------------
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interest by those entitled thereto or (2) pay in cash the fair value of
fractions of a share as to the time when those entitled to receive such
fractions are determined, or (3) issue script or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such script or warrants aggregating at full share.
A certificate for a fractional share shall, but script or warrant shall not
unless otherwise provided therein, entitle the holder to exercise voting rights,
receive dividends thereon, and to participate in any of the assets of the
Corporation in the event of liquidation. The Board of Directors may cause
script or warrants to be issued subject
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to the conditions that they shall become void if not exchanged for certificates
representing full shares before a specified date, or subject to the conditions
that the shares for which script or warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holder of script or
warrants, or subject to any other conditions which the Board of Directors may
impose.
ARTICLE II
MEETINGS OF SHAREHOLDERS
------------------------
2.1 ANNUAL MEETING. The annual meeting of the shareholders of this
--------------
Corporation shall be held 60 days after the receipt of the financial statements
of the preceding fiscal year at a place designated by the Board of Directors of
the Corporation. The annual meeting of the shareholders for any year shall be
held no later than thirteen (13) months after the last preceding annual meeting
of shareholders;. Business transacted at the annual meeting shall include the
election of directors of the Corporation.
2.2 SPECIAL MEETINGS. Special meetings of the shareholders shall be held
----------------
when directed by the president or the Board of Directors or when requested in
writing by the holders of not less than 10% of the shares entitled to vote at
the meeting. A meeting requested by shareholders shall be called for a date not
less than 10 nor more than 60 days after the request is made, unless the
shareholders requesting the meeting designate a later date. The call for the
meeting shall be issued by the secretary, unless the president, Board of
Directors, or shareholders requesting the meeting shall designate another person
to do so.
2.3 PLACE. Both annual and special meetings of shareholders may be held
-----
within or without the State of Florida.
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2.4 NOTICE. Written notice stating the place, day and hour of the meeting
------
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than 10 nor more than 60 days
before the meeting, either personally or by first class mail, by or at the
direction of the president, the secretary, or the officer or person calling the
meeting to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
stock transfer books of the corporation, with postage thereon paid.
2.5 NOTICE OF ADJOURNED MEETING. When a meeting is adjourned to another
---------------------------
time or place, it shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is adjourned are announced at
the meeting to which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted on the original date
of the meeting. If, however, after the adjournment, the board of directors
fixes a new record date for the adjourned meeting, a notice of the adjourned
meeting shall be given as provided in this section to each shareholder on the
new record date entitled to vote at such meeting.
2.6 CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For the purpose of
------------------------------------------------
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend or in order to make a determination of shareholders for any other
purpose, the board of directors may provide that the stock transfer books shall
be closed for a stated period but not to exceed, in any case, 60 days. If the
stock transfer books shall be closed for the purposes of
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<PAGE>
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least 10 days immediately
preceding such meeting.
In lieu of closing the stock transfer books, the board of directors
may fix in advance a date as the record date for any determination of
shareholders, such date in any case to be not more than 60 days and, in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the board of directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
On a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the board of directors fixes a new
record date for the adjourned meeting.
2.7 SHAREHOLDER QUORUM AND VOTING. The majority of the shares entitled to
-----------------------------
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders.
After the quorum has been established at the shareholders meetings,
the subsequent withdrawal of shareholders, so as to reduce the number of
shareholders entitled to
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<PAGE>
vote as the meeting below the number required for a quorum, shall not affect the
validity of any action at the meeting or any adjournment thereof.
2.8 CONDUCT OF MEETING. The meetings of the shareholders shall be
------------------
presided over by one of the following officers in the order of seniority and if
present and acting, the chairman of the board, if any, the vice chairman of the
board, if any, the president, a vice president, or, if none of the foregoing is
in office, present and acting, by a chairman to be chosen by the shareholders.
The secretary of the corporation, or in his absence, an assistant secretary,
shall act as secretary of every meeting, but if neither the secretary nor an
assistant secretary is present, the chairman of the meeting shall appoint a
secretary of the meeting.
2.9 VOTING OF SHARES. Each outstanding share, shall be entitled to one
----------------
vote on each matter submitted to a vote at the meeting of shareholders.
Treasury shares, shall not be counted in determining the total number of
outstanding shares at any given time.
A shareholder may vote either in person or by proxy executed in
writing by the shareholder or his duly authorized attorney-in-fact.
At each election for directors, every shareholder entitled to vote at
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected at
that time and for whose election he has a right to vote.
Such shareholder shall not have the right to accumulate his votes by
giving one candidate as many votes as the number of directors to be elected at
that time multiplied by the
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<PAGE>
number of his shares, or by distributing such votes on the same principle among
any number of such candidates.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee or his nominee shall be entitled to vote the shares so
transferred.
On and after the date on which written notice of redemption or
redeemable shares has been mailed to the holders thereof in a sum sufficient to
redeem such shares has been deposited with a bank or trust company with
irrevocable instruction and authority to pay the redemption price to the holders
thereof upon surrender of certificates therefore, such shares shall not be
entitled to vote on any matter and shall not be deemed to be outstanding shares.
2.10 PROXIES. Every shareholder entitled to vote at a meeting of
-------
shareholders or to express consent or dissent without a meeting or a
shareholder's duly authorized attorney-in-fact may authorize another person or
persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact.
A signed proxy is presumed valid. No proxy shall be invalid after the
expiration of 11 months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the shareholder
executing it, except as otherwise provided by law.
The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the shareholder who executed the proxy unless,
before the authority is exercised, written notice of an adjudication of such
incompetence or such death is received by the corporate officer responsible for
maintaining the list of shareholders.
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<PAGE>
If a proxy for the same shares confers authority upon two or more
persons and does not otherwise provide, a majority of them present at the
meeting, or if only one is present, then that one may exercise all the powers
conferred by the proxy; but if the proxy holders present at the meeting are
equally divided as to the right and manner of voting in any particular case, the
voting of such shares shall be pro rated.
If a proxy expressly provides, any proxy holder may appoint in writing
a substitute to act in his place.
2.11 SHAREHOLDERS' AGREEMENTS. Two or more shareholders of this
------------------------
Corporation may enter an agreement providing for the exercise of voting rights
in the manner provided in agreement or relating to any phase of affairs of the
corporation as provided by law. Nothing therein shall impair the right of this
corporation to treat the shareholders of record as entitled to vote the shares
standing in their names.
2.12 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required by law,
----------------------------------------
these bylaws, or articles of incorporation of this Corporation to be taken at
any annual or special meeting of shareholders of the corporation, or any action
which may be taken at any annual or special meeting of such shareholders, may be
taken without a meeting, without prior notice and without vote, if a consent in
writing, setting forth the action so taken, shall be signed by the shareholders
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. If any class of shares is
entitled to vote thereon as a class, such written consent shall be required by
the holders of a
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<PAGE>
majority of the shares of each class of shares entitled to vote as a class
thereon and of the total shares entitled to vote thereon.
Within 10 days after obtaining such authorization by written consent,
notice shall be given to those shareholders who have not consented in writing.
The notice shall fairly summarize the material features of the authorized action
and, if the action be a merger, consolidation or sale or exchange of assets for
which the dissenters rights are provided for by law, the notice shall contain a
clear statement of the right of shareholders dissenting therefrom to be paid the
fair value of their shares upon compliance with the further provisions of law
regarding the rights of dissenting shareholders.
ARTICLE III
DIRECTORS
---------
3.1 FUNCTION. All corporate powers shall be exercised by or under the
--------
authority of, and the business and affairs of the Corporation shall be managed
under the direction of the board of directors.
3.2 QUALIFICATION. Directors need not be residents of this state or be
-------------
shareholders of this Corporation.
3.3 COMPENSATION. The board of directors shall have the authority to fix
------------
the compensation of directors.
3.4 DUTIES OF DIRECTORS. A director shall perform his duties as a
-------------------
director, including his duties as a member of any committee of the Board upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interest of the corporation,
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<PAGE>
and with such care as an ordinarily prudent person in a like position would use
under similar circumstances.
In performing his duties, a director shall be entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by:
(a) One or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the matters
presented,
(b) Counsel, public accountants or other persons as to matters which
the director reasonably believes to be within such person's professional or
expert competence, or
(c) A committee of the board upon which he does not serve, duly
designated in accordance with the provisions of the articles of incorporation or
the bylaws, as to matters within its designated authority, which committee the
director reasonably believes to merit competence.
A director shall not be considered to be acting in good faith if he
has knowledge of the matter in question that would cause such reliance described
above to be unwarranted.
A person who performs his duties in compliance with this section shall
have no liability by reason of being or having been a director of this
corporation.
3.5 PRESUMPTION OF ASSENT. A director of the Corporation who is present
---------------------
at a meeting of its board of directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless he votes
against such action or abstains from voting in respect thereto because of an
asserted conflict of interest.
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<PAGE>
3.6 NUMBER. This corporation shall have a minimum of one director and a
------
maximum of seven (7) directors. The number of directors may be increased or
decreased from time to time by amendment to these bylaws, but no decrease shall
have the effect of shortening the terms of any incumbent director.
3.7 ELECTION AND TERM. Each person named in the articles of incorporation
-----------------
as a member of the initial board of directors, shall hold office until the first
annual meeting of shareholders, or until a successor shall have been elected and
qualified or until his earlier resignation, removal from office or death.
At the first annual meeting of the shareholders and at each annual
meeting thereafter, the shareholders shall elect directors to hold office until
the next succeeding annual meeting. Each director shall hold office for the
term for which he is elected and until his successor shall have been elected and
qualified or until his earlier resignation, removal from office or death.
3.8 VACANCIES. Any vacancies occurring in the board of directors,
---------
including any vacancy created by reason of an increase in the number of
directors, may be filed by the affirmative vote of the majority of the remaining
directors though less than a quorum of the board of directors. A director
elected to fill a vacancy shall hold office only until the next election of
directors by the shareholders.
3.9 REMOVAL OF DIRECTORS. At a meeting of the shareholders called
--------------------
expressly for that purpose, any director or the entire board of directors may be
removed, with or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of directors.
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<PAGE>
3.10 QUORUM IN VOTING. A majority of the number of directors then in
----------------
office shall constitute a quorum for the transaction of business. The act of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the board of directors.
3.11 EXECUTIVE AND OTHER COMMITTEES. The board of directors, by resolution
------------------------------
adopted by a majority of a full board of directors, may designate from among its
members an executive committee and one or more other committees each of which,
to the extent provided in such resolution shall have and may exercise all the
authority of the board of directors, except that no committee shall have the
authority to:
(a) Approve or recommend to shareholders actions or proposals
required by law to be approved by shareholders,
(b) Designate candidates for the office of directors, for the
purposes of proxy solicitation or otherwise,
(c) Fill vacancies in the board of directors or any committee
thereof,
(d) Amend the bylaws,
(e) Authorize or approve the re-acquisition of shares unless pursuant
to a general formula or method specified by the board of directors, or
(f) Authorize or approve the issuance or sale of, or any contract to
issue or sell, shares or designate the terms of a series of a class of shares,
except that the board of directors, having acted regarding general authorization
for the issuance for sale of shares, or any contract therefore, and, in the case
of a series, the designation thereof, may, pursuant to a general formula or
method specified by the board of directors, by resolution or by adoption of
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<PAGE>
a stock option or other plan, authorize a committee to fix the terms of any
contract for sale of the shares and to fix the terms upon which said shares may
be issued or sold, including without limitation, the price, the rate or manner
of payment or dividends, provisions for redemption, sinking fund, conversion,
voting of preferential rights, and provisions for other features of a class of
shares, or series of a class of shares, with full power of such committee to
adopt any final resolution setting forth all the terms thereof and to authorize
a statement of the terms of a series for filing with the Department of State.
The board of directors, by resolution adopted in accordance with this
section, may designate one or more directors as alternate members of any such
committee, who may act in the place and stead of any absent member or members at
any meeting of such committee.
3.12 PLACE OF MEETINGS. Regular and special meetings by the board of
-----------------
directors may be held within or without the State of Florida. Meetings shall be
held at such place as shall be fixed by the board.
3.13 TIME, NOTICE AND CALL OF MEETINGS. Regular meetings of the board of
---------------------------------
directors shall be held without notice on the first Monday of the last week of
the month in which this Corporation was formed. Written notice of the time and
place of special meetings of the board of directors shall be given to each
director by either personal delivery, telegram or cablegram at least two days
before the meeting or by notice mailed to the director at least five days before
the meeting.
Notice of a meeting of the board of directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a
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meeting shall constitute a waiver of notice of such meeting and waiver of any
and all obligations to the place of the meeting, the time of the meeting, or the
manner in which it has been called or convened, except when a director states,
at the beginning of a meeting, any objection to the transaction of business
because the meeting is not lawfully called or convened.
Neither the business to be transacted at nor the purpose of any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the board of directors to another time and place.
Notice of any such adjourned meeting shall be given to the directors who were
not present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
Meetings of the board of directors may be called by the chairman of
the board, by the president or by any one or more directors.
Members of the board of directors may participate in a meeting of such
board by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at a meeting.
3.14 ACTION WITHOUT A MEETING. Any action required to be taken at a
------------------------
meeting of the directors of the corporation, or any action which may be taken at
a meeting of the directors or a committee thereof, may be taken without a
meeting if a consent in writing,
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setting forth the action so to be taken, signed by all of the directors or all
the members of the committee, as in the case may be, is filed in the minutes of
the proceedings of the board or of the committee. Such consent shall have the
same effect as a unanimous vote.
ARTICLE IV
OFFICERS
--------
4.1 OFFICERS. The officers of this corporation consist of a president and
--------
a secretary, each of whom shall be elected by the board of directors. Such
other officers and assistant officers and agents as may be deemed necessary may
be elected or appointed by the board of directors from time to time. Any two or
more offices may be held by the same person. The failure to elect a president
or secretary shall not affect the existence of this corporation.
4.2 DUTIES. The officers of this corporation shall have the following
------
duties:
PRESIDENT: The president shall manage the business and affairs of the
---------
corporation, shall have general and active management of business and
affairs of the corporation subject to the directions of the board of
directors, and shall preside at all meetings of the stockholders.
SECRETARY: The secretary shall have custody of, and maintain all of the
----------
corporate records except the financial records; shall record the minutes of
all meetings of the stockholders and board of directors, send all notices
of meetings out, and perform such other duties as may be prescribed by the
board of directors or the president.
TREASURER. The treasurer, if appointed, has the custody of all corporate
---------
funds and financial records, shall keep full and accurate accounts of
receipts and disbursements
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and render accounts thereof at the annual meetings of the stockholders and
whenever else required by the board of directors or the president, and
shall perform such other duties as may be prescribed by the board of
directors or the president.
4.3 REMOVAL OF OFFICERS. Any officer or agent elected or appointed by the
-------------------
board of directors may be removed by the board of directors whenever in its
judgment the best interests of the corporation will be served thereby.
Any officer or agent elected by the shareholders may be removed only by
vote of the shareholders, unless the shareholders shall have authorized the
directors to remove such officer or agent.
Any vacancy, however occurring, in any office may be filled by the board of
directors, unless the bylaws shall have expressly reserved such powers to the
shareholders.
Removal of any officer shall be without prejudice to the contract rights,
if any, of the person so removed; however, election or appointment of an officer
or agent shall not of itself create contract rights.
ARTICLE V
BOOKS AND RECORDS
-----------------
5.1 BOOKS AND RECORDS. This corporation shall keep correct and complete
-----------------
books and records of account and shall keep minutes of the proceedings of its
shareholders, board of directors and committees of directors.
This corporation shall keep at its registered office of principal place of
business, a record of its shareholders, giving the names and addresses of all
the shareholders and the number, class and series, if any, of the shares held by
each.
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Any books, records and minutes may be in written form within a reasonable
time.
5.2 SHAREHOLDERS' INSPECTION RIGHTS. Any person who shall have been a
-------------------------------
holder of record of shared at least six months immediately preceding his demand
or shall be the holder of record of at least five percent of the outstanding
shares of any class or series of the corporation, upon written demand stating
the purpose thereof, shall have the right to examine, in person or by agent or
attorney, at any reasonable time or times, for any purpose that is relevant, the
books and records of accounts, minutes and records of shareholders and to make
extracts therefrom.
5.3 FINANCIAL INFORMATION. Not later than four months after the close of
---------------------
each fiscal year, this corporation shall prepare a balance sheet showing in
reasonable detail the financial conditions of the corporation as of the close of
its fiscal year, and a profit and loss statement showing the results of the
operations of the corporation during its fiscal year.
Upon written request of any shareholder of the corporation, the corporation
shall present to such shareholder a copy of the most recent such filed sheet and
profit and loss statement.
The balance sheets and profit and loss statements shall be filed in the
registered office of the corporation in this State, shall be kept for at least
five years, and shall be subject to inspection during the business hours by any
shareholder or holder of voting trust certificates, in person or by agent.
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ARTICLE VI
DIVIDENDS
---------
The board of directors of this corporation may, from time to time, declare
and the corporation may pay dividends on its shares in cash, property or its own
shares, except when the corporation is insolvent or when the payment thereof
would be contrary to any restrictions contained in the articles of
incorporation, subject to the following provisions:
(a) Dividends in cash or in property may be declared and paid, except as
otherwise provided in this section, only out of the unreserved and unrestricted
earned surplus of the corporation or out of capital surplus shall be identified
as a distribution of capital surplus, and the amount per share paid from such
surplus shall be disclosed to the shareholders receiving the same concurrently
with the distribution.
(b) Dividends may be declared and paid in the corporation's own treasury
shares.
(c) Dividends may be declared and paid in the corporation's own authorized
by unissued shares out of any unreserved and unrestricted surplus of the
corporation upon the following conditions:
(1) If a dividend is payable in shares having a par value, such
shares shall be issued at not less than the par value thereof and there shall be
transferred to stated capital at the time such dividend is paid an amount of
surplus equal to the aggregate par value of the shares to be issued as a
dividend.
(2) If a dividend is payable in shares without par value, such shares
shall be issued as such state values that shall be fixed by the board of
directors by resolution adopted at the time such dividend is declared, and there
shall be transferred to stated capital at the
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time such dividend is paid an amount of surplus equal to the aggregate stated
value so fixed in respect of such shares: in the amount per share so transferred
to stated capital shall be disclosed to the shareholders receiving such dividend
concurrently with the payment thereof.
(d) No dividends payable in shares of any class shall be paid, the holders
of shares of any other class unless the articles of incorporation so provide or
such payment is authorized by the affirmative vote or the written consent of the
holders of at least a majority of the outstanding shares of the class in which
the payment is to be made.
(e) A split up or division of the unissued shares of any class into a
greater number of shares of the same class without increasing the stated capital
of the corporation shall not be construed to be a share dividend within the
meaning of this section.
ARTICLE VII
CORPORATE SEAL
--------------
The board of directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation,
the year of incorporation, and State of incorporation.
ARTICLE VII
AMENDMENT
---------
These bylaws may be repealed or amended, and new bylaws may be adopted by
the board of directors, and approved by the shareholders.
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Exhibit 3.22
Office of the Mississippi Secretary of State
P.O. Box 136, Jackson, MS 39205-0136 (601) 359-1333
Article of Incorporation
The undersigned persons, pursuant to Section 7-4-2.02 (if a profit
corporation) or Section 79-11-137 (if a nonprofit corporation) of the
Mississippi Code of 1972, hereby execute the following document and set
forth:
Type of corporation: Profit
1. Name of corporation: Riverboat Corporation of
Mississippi
2. Domicile Address is: 211 Gay Street
P.O. Box 1166
McComb, MS (Pike County) 39648
3. The period of duration is 99 years.
4. The number (and classes, if any) of shares the corporation is
authorized to issue is (are) as follows
Class(es): Common
# of shares authorized: 1,000,000
5. The street address of its
initial registered office is: 211 Gay Street
P.O. Box 1166
McComb, MS (Pike County) 39648
and the name of its initial
registered agent at such address is: W.A. Wiltshire
6. Name and complete address of W.A. Wiltshire
each incorporator: 211 Gay Street
P.O. Box 1166
McComb, MS (Pike County) 39648
7. Other Provisions: None
Incorporator: /s/ W.A. Wiltshire
----------------------
<PAGE>
EXHIBIT 3.23
BY-LAWS OF
RIVERBOAT CORPORATION OF MISSISSIPPI
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of
RIVERBOAT CORPORATION OF MISSISSIPPI (the "Corporation"), a Mississippi
corporation, as follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Washington Loop, in the City of Biloxi, State of Mississippi, (39530) or such
other location as may be designated by the Directors from time to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect all
the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
(b) Access to Accounting Records. All books, records, files, securities
and other documents or information maintained by the Corporation shall be
maintained at the Principal Business Office or at any other office of the
Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation shall
be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in
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the name of the Corporation by the Chairman, President or a Vice President, and
by the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any
signature upon a certificate may be a facsimile. Certificates on which a
facsimile signature of a former officer, transfer agent or registrar appears may
be issued with the same effect as if he were such officer, transfer agent or
registrar on the date of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder" shall
mean the person, firm or corporation in whose name outstanding shares of capital
stock of the Corporation are currently registered on the stock record books of
the Corporation. A record shall be kept of the name of the person, firm or
corporation owning the stock represented by such certificates, the respective
dates thereof and, in the case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of stock to
be lost or destroyed shall make an affidavit or affirmation of that fact in such
form as the Directors may require, and shall, if the Directors so require, give
the Corporation a bond of indemnity in form and with one or more sureties
satisfactory to the Directors of at least double the value, as determined by the
Directors, of the stock represented by such certificate in order to indemnify
the Corporation against any claim that may be made against it on account upon a
new certificate may be issued in the same tenor and for the same number of
shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of Stockholders
may be held at such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. The annual meeting of
Stockholders shall be held on the date of the annual meeting for Casino America,
Inc. At the annual meeting the Stockholders, voting as provided in the Articles
of Incorporation, shall elect Directors and shall transact such other business
as may properly be brought before the meeting. Special
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meetings of the Stockholders entitled to vote shall be called by the Secretary
at any time upon request of the Chairman of the Board of Directors, the
President or the Directors (acting upon majority vote) or upon request by
Stockholders holding ten percent (10%) or more of the voting power of the
Stockholders. Meetings of the Stockholders hereunder will be held upon no less
than seven (7) and no more than forty-five (45) days prior written notice
delivered in accordance with these By-Laws. Any Stockholder may vote at any
meeting in person or by proxy. Participation in any meeting of the Stockholders
may be in person or by telephone. Notice of any meeting may be waived in
writing, either before or after the meeting. The presence of a Stockholder at
any meeting shall constitute a waiver of notice and the form thereof, unless a
Stockholder's presence at such meeting is solely for the purpose of objecting to
the form or notice of the holding of a meeting without proper notice. The
holders of a majority of all shares outstanding and entitled to vote,
represented either in person or by proxy, shall constitute a quorum for the
transaction of business at any annual or special meeting of the Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented at
any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the business
and affairs of the Corporation shall be managed by, a Board of Directors of not
less than three, nor more than seven, except that when all of the outstanding
shares are held of record by fewer than three Stockholders, then there may be as
many Directors as there are Stockholders. At each annual meeting, the
Stockholders shall determine the number of Directors. The number of Directors
may be increased by the Stockholders or by the Directors or may be decreased by
the Stockholders (if there are fewer Stockholders than
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three), or in the event of any vacancy or vacancies, by the Directors to
eliminate such vacancies. Any decrease in the number of Directors by the
Stockholders shall have the effect of terminating the term of office of all
Directors unless the effect of such decrease is merely to eliminate a vacancy or
vacancies. If such decrease terminating the term of office of all Directors is
effected at a meeting of Stockholders, the new Directors shall be elected at
such meeting. Each Director shall hold office until the annual meeting held next
after his election and until his successor shall have been elected and
qualified, until he shall resign or until he shall have been removed by the
Stockholders in the manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by reason of
death, resignation, removal or otherwise or if a newly created directorship
results from an increase in the number of Directors, such vacancy may be filled
for the unexpired term by a majority vote of the Directors then in office or by
the sole remaining Director, although less than a quorum exists. Each person so
elected shall be a Director until his successor is elected by the Stockholders,
who may make such election at their next annual meeting or any special meeting
duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the Directors
may be called by the Chairman of the Board, the President, by any two (2)
Directors, or by any one (1) Director when there are two (2) Directors or less
then serving. Unless notice shall be waived by all Directors, notice of any
special meeting (including a statement of the purposes thereof) shall be given
to each Director at least twenty-four (24) hours in advance of the meeting if
oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must agree
to provide such background information, including a financial statement, and
consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such Director shall
abstain
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from participating in any action with respect to operations of the Corporation
in such state or jurisdiction pending such background check or approval.
(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities
and obligations as are associated by custom or statute with their respective
offices under the Mississippi Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Mississippi
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles of
Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise ordered
by the Directors, the President shall have full power and authority on behalf of
the Corporation to attend and to vote at any meeting of security holders of
other companies in which the
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Corporation may hold securities; to execute any proxy for such meeting on behalf
of the Corporation and to execute a written action in lieu of a meeting of such
other company on behalf of this Corporation. At such meeting, by such proxy or
by such writing in lieu of meeting, the President shall possess and may exercise
any and all rights and powers incident to the ownership of such securities that
the Corporation might have possessed and exercised if it had been present. The
Directors may, from time to time, confer like powers upon any other person or
persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be
given by these By-Laws, the Articles of Incorporation or any of the Mississippi
Business Corporation Laws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any committee
designated by the Directors, may participate in a meeting of the Directors or of
such committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear and
communicate with each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting. The place of the
meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal or
adopt By-Laws at any regular meeting or at any special meeting called for that
purpose, subject to the power of the Stockholders to change or repeal such By-
Laws and subject to any other limitations on such authority of the Directors
provided by the Mississippi Business Corporation Laws.
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Exhibit 3.24
Office of the Mississippi Secretary of State
P.O. Box 136, Jackson, MS 39205-0136 (601) 359-1333
Article of Incorporation
The undersigned persons, pursuant to Section 7-4-2.02 (if a profit
corporation) or Section 79-11-137 (if a nonprofit corporation) of the
Mississippi Code of 1972, hereby execute the following document and set
forth:
Type of corporation: Profit.
1. Name of corporation: Riverboat Corporation of
Mississippi - Vicksburg
2. Domicile Address is: 403 South State Street
Jackson, MS 39201
3. For nonprofits only: N/A
4. The number (and classes, if any) of shares the corporation is
authorized to issue is (are) as follows
Class(es): None
# of shares authorized: 5000
5. The street address of its
initial registered office is: 403 South State Street
Jackson, MS 39201
and the name of its initial
registered agent at such address is: R. Scott Levanway
6. Name and complete address of R. Scott Levanway
each incorporator: 403 South State Street
Jackson, MS 39201
Anne Heidke
403 South State Street
Jackson, MS 39201
7. Other Provisions: None
Incorporators: /s/ R. Scott Levanway
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/s/ Ann Heidke
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EXHIBIT 3.25
BY-LAWS OF
RIVERBOAT CORPORATION OF MISSISSIPPI - VICKSBURG
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of
RIVERBOAT CORPORATION OF MISSISSIPPI - VICKSBURG (the "Corporation"), a
Mississippi corporation, as follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 711
Washington Loop, in the City of Biloxi, State of Mississippi, (39530) or such
other location as may be designated by the Directors from time to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation
shall be kept, and the financial position and the results of its operations
recorded, in accordance with the accounting methods selected by the Directors
from time to time, and if not so selected, the books and records shall be
maintained in accordance with generally accepted accounting principles
consistently applied. The books and records of the Corporation shall reflect
all the Corporation's transactions and shall be appropriate and adequate for the
Corporation's business. The accounting year of the Corporation for financial
reporting and for federal income tax purposes shall be consistent with that of
the Stockholder or Stockholders.
(b) Access to Accounting Records. All books, records, files,
securities and other documents or information maintained by the Corporation
shall be maintained at the Principal Business Office or at any other office of
the Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation
shall be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be
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signed in the name of the Corporation by the Chairman, President or a Vice
President, and by the Secretary, Assistant Secretary, Treasurer or Assistant
Treasurer. Any signature upon a certificate may be a facsimile. Certificates on
which a facsimile signature of a former officer, transfer agent or registrar
appears may be issued with the same effect as if he were such officer, transfer
agent or registrar on the date of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder"
shall mean the person, firm or corporation in whose name outstanding shares of
capital stock of the Corporation are currently registered on the stock record
books of the Corporation. A record shall be kept of the name of the person,
firm or corporation owning the stock represented by such certificates, the
respective dates thereof and, in the case of cancellation, the respective dates
of cancellation. Every certificate surrendered to the Corporation for exchange
or transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the
Corporation may be authorized only by the Stockholder named in the certificate
(or his legal representative or duly authorized attorney-in-fact) and upon
surrender for cancellation of the certificate or certificates for such shares.
The Stockholder in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, that when any transfer of shares shall be made as
collateral security and not absolutely, such fact shall be so expressed in the
entry of transfer if both the transferor and the transferee request the
Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact in such form as the Directors may require, and shall, if the Directors so
require, give the Corporation a bond of indemnity in form and with one or more
sureties satisfactory to the Directors of at least double the value, as
determined by the Directors, of the stock represented by such certificate in
order to indemnify the Corporation against any claim that may be made against it
on account upon a new certificate may be issued in the same tenor and for the
same number of shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of
Stockholders may be held at such time and place as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof. The annual
meeting of Stockholders shall be held on the date of the annual meeting for
Casino America, Inc. At the annual meeting the Stockholders, voting as provided
in the Articles of Incorporation, shall elect Directors and shall transact such
other business as may properly be brought before the meeting. Special
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meetings of the Stockholders entitled to vote shall be called by the Secretary
at any time upon request of the Chairman of the Board of Directors, the
President or the Directors (acting upon majority vote) or upon request by
Stockholders holding ten percent (10%) or more of the voting power of the
Stockholders. Meetings of the Stockholders hereunder will be held upon no less
than seven (7) and no more than forty-five (45) days prior written notice
delivered in accordance with these By-Laws. Any Stockholder may vote at any
meeting in person or by proxy. Participation in any meeting of the Stockholders
may be in person or by telephone. Notice of any meeting may be waived in
writing, either before or after the meeting. The presence of a Stockholder at
any meeting shall constitute a waiver of notice and the form thereof, unless a
Stockholder's presence at such meeting is solely for the purpose of objecting to
the form or notice of the holding of a meeting without proper notice. The
holders of a majority of all shares outstanding and entitled to vote,
represented either in person or by proxy, shall constitute a quorum for the
transaction of business at any annual or special meeting of the Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented
at any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by, a Board of
Directors of not less than three, nor more than seven, except that when all of
the outstanding shares are held of record by fewer than three Stockholders, then
there may be as many Directors as there are Stockholders. At each annual
meeting, the Stockholders shall determine the number of Directors. The number
of Directors may be increased by the Stockholders or by the Directors or may be
decreased by the Stockholders (if there are fewer Stockholders than
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three), or in the event of any vacancy or vacancies, by the Directors to
eliminate such vacancies. Any decrease in the number of Directors by the
Stockholders shall have the effect of terminating the term of office of all
Directors unless the effect of such decrease is merely to eliminate a vacancy or
vacancies. If such decrease terminating the term of office of all Directors is
effected at a meeting of Stockholders, the new Directors shall be elected at
such meeting. Each Director shall hold office until the annual meeting held next
after his election and until his successor shall have been elected and
qualified, until he shall resign or until he shall have been removed by the
Stockholders in the manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by
reason of death, resignation, removal or otherwise or if a newly created
directorship results from an increase in the number of Directors, such vacancy
may be filled for the unexpired term by a majority vote of the Directors then in
office or by the sole remaining Director, although less than a quorum exists.
Each person so elected shall be a Director until his successor is elected by the
Stockholders, who may make such election at their next annual meeting or any
special meeting duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be
held at such time and place as may from time to time be determined by the
Directors. No notice need be given of any regular meeting. Special meetings of
the Directors may be held at such time and place as may be designated in the
notice or the waiver of notice of the meeting. Special meetings of the Directors
may be called by the Chairman of the Board, the President, by any two (2)
Directors, or by any one (1) Director when there are two (2) Directors or less
then serving. Unless notice shall be waived by all Directors, notice of any
special meeting (including a statement of the purposes thereof) shall be given
to each Director at least twenty-four (24) hours in advance of the meeting if
oral or two (2) days in advance of the meeting if by mail, telegraph or other
written communication. Attendance at a meeting by any Director, without
objection in writing by him, shall constitute his waiver of notice of such
meeting. A majority of the total number of Directors shall constitute a quorum
for the transaction of business; provided, however, that if any vacancies exist
by reason of death, resignation, removal or otherwise, a majority of the
remaining Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must
agree to provide such background information, including a financial statement,
and consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such
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Director shall abstain from participating in any action with respect to
operations of the Corporation in such state or jurisdiction pending such
background check or approval.
(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities and
obligations as are associated by custom or statute with their respective offices
under the Mississippi Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Mississippi
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles
of Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise
ordered by the Directors, the President shall have full power and authority on
behalf of the Corporation (1) to attend and to vote at any meeting of security
holders of other companies
5
<PAGE>
in which the Corporation may hold securities; (2) to execute any proxy for such
meeting on behalf of the Corporation and (3) to execute a written action in lieu
of a meeting of such other company on behalf of this Corporation. At such
meeting, by such proxy or by such writing in lieu of meeting, the President
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities that the Corporation might have possessed and
exercised if it had been present. The Directors may, from time to time, confer
like powers upon any other person or persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be
given by these By-Laws, the Articles of Incorporation or any of the Mississippi
Business Corporation Laws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any
committee designated by the Directors, may participate in a meeting of the
Directors or of such committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear and communicate with each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meeting. The place of
the meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal
or adopt By-Laws at any regular meeting or at any special meeting called for
that purpose, subject to the power of the Stockholders to change or repeal such
By-Laws and subject to any other limitations on such authority of the Directors
provided by the Mississippi Business Corporation Laws.
6
<PAGE>
Exhibit 3.26
ARTICLES OF INCORPORATION
OF
RIVERBOAT SERVICES, INC.
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to Section 202 of the Iowa Business Corporation Act, the undersigned,
acting as incorporator(s) of a corporation, adopts the following articles of
incorporation for the corporation:
1. The name of the corporation is Riverboat Services, Inc.
2. The number of shares the corporation is authorized to issue is 10,000 of
one class without par value.
3. The street address of the corporation's initial registered office in Iowa
and the name of its initial registered agent at that office is: Curtis E.
Beason, 600 Davenport Bank Building, Davenport, IA 52801.
4. The name and address of each incorporator is:
Curtis E. Beason
600 Davenport Bank Building
Davenport, IA 52801
5. A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of the
law, (iii) for any transaction from which the director derived an improper
personal benefit, or (iv) under Section 833 of the Iowa Business
Corporation Act. No amendment to or repeal of this Article shall apply to
or have any effect on the liability or alleged liability of any director of
the corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. The directors of
this corporation have agreed to serve as directors in reliance upon the
provisions of this Article.
RIVERBOAT SERVICES, INC.
By /s/ Curtis E. Beason
------------------------------
<PAGE>
EXHIBIT 3.27
BY-LAWS
OF
RIVERBOAT SERVICES, INC.
ARTICLE I
---------
OFFICES
-------
The principal office of the corporation in the State of Iowa shall be
located in the City of Bettendorf, County of Scott. The corporation may have
such other offices, either within or without the State of Iowa, as the Board of
Directors may designate or as the business of the corporation may require from
time to time.
The registered office of the corporation required by the Iowa Business
Corporation Act to be maintained in the State of Iowa may be, but need not be,
identical with the principal office in the State of Iowa, and the address of the
registered office may be changed from time to time by the Board of Directors.
ARTICLE II
----------
SHAREHOLDERS
------------
Section 1. Annual Meeting. The annual meeting of the shareholders
--------------
shall be held on the 2nd Tuesday in June in each year, at the hour of 10:00
o'clock A.M., for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day. If the election of directors shall not be held on the
day designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as conveniently may
be.
Section 2. Special Meetings. Special meetings of the shareholders,
----------------
for any purpose or purposes, unless otherwise prescribed by statute, may be
called by the President, the Board of Directors or the holders of not less than
one-fourth of all the outstanding shares of the corporation entitled to vote at
the meeting.
Section 3. Place of Meeting. The Board of Directors may designate
----------------
any place, either within or without the State of Iowa, as the place of meeting
for any annual meeting or for any special meeting called by the shareholders. A
waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place, either within or without the State of Iowa, as the place
for the holding of such meeting. If no designation is made, or
<PAGE>
if a special meeting be otherwise called, the place of meeting shall be the
registered office of the corporation in the State of Iowa, except as otherwise
provided in Section 12 of this Article.
Section 4. Notice of Meeting. Written or printed notice stating the
-----------------
place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
Section 5. Closing of Transfer Books or Fixing of Record Date. For
--------------------------------------------------
the purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock transfer
books shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing
the stock transfer books, the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders, such date in any
case to be not more than fifty days, and, in case of a meeting of shareholders,
not less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the stock
transfer books are not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the Board
of Directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 6. Voting Lists. The officer or agent having charge of the
------------
stock transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting. The original stock transfer book shall be
2
<PAGE>
prima facie evidence as to who are the shareholders entitled to examine such
lists or transfer books or to vote at any meeting of shareholders.
Section 7. Quorum. A majority of the outstanding shares of the
------
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of
the outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted, which might have been transacted at the meeting as
originally notified. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 8. Proxies. At all meetings of shareholders, a shareholder
-------
may vote by proxy executed in writing by the shareholder or by his duly
authorized attorney in fact. Such proxy shall be filed with the secretary of
the corporation before or at the time of the meeting. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise provided in
the proxy.
Section 9. Voting of Shares. Each outstanding share entitled to vote
----------------
shall be entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders.
Section 10. Voting of Shares by Certain Holders. Shares standing in
-----------------------------------
the name of another corporation may be voted by such officer, agent or proxy as
the by-laws of such corporation may prescribe, or, in the absence of such
provisions, as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 11. Informal Action by Shareholders. Any action required to
-------------------------------
be taken at a meeting of the shareholders, or any other action which may be
taken at a meeting of the
3
<PAGE>
shareholders, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof.
Section 12. Meeting of All Shareholders. If all of the shareholders
---------------------------
shall meet at any time and place, either within or without the State of Iowa,
and consent to the holding of a meeting at such time and place, such meeting
shall be valid without call or notice, and at such meeting any corporate action
may be taken.
Section 13. Voting by Ballot. Voting on any question or in any
----------------
election may be viva voce unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
ARTICLE III
-----------
BOARD OF DIRECTORS
------------------
Section 1. General Powers. The business and affairs of the
--------------
corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of directors
---------------------------------
of the corporation shall be not less than one and not more than five. Each
director shall hold office until the next annual meeting of shareholders and
until his successor shall have been elected and qualified. Directors need not
be residents of the State of Iowa or shareholders of the corporation.
Section 3. Regular Meetings. A regular meeting of the Board of
----------------
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Iowa for the holding of additional regular meetings without
other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by or at the request of the President or any director.
The person or persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State of Iowa, as the
place for holding any special meeting of the Board of Directors called by him.
Section 5. Notice. Notice of any special meeting shall be given at
------
least seven days prior thereto by written notice delivered personally or mailed
to each director at his business address, or by telegram. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice be given by telegram,
such notice shall be deemed to be delivered when the telegram is delivered to
the telegraph company. Any director may waive notice of any meeting. The
attendance of
4
<PAGE>
a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 6. Quorum. A majority of the number of directors fixed by
------
Section 2 of this Article III shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, but if less than such
majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 7. Manner of Acting. The act of the majority of the
----------------
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 8. Vacancies. Any vacancy occurring on the Board of
---------
Directors may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase
in the number of directors shall be filled by election at an annual meeting or
at a special meeting of shareholders called for that purpose.
Section 9. Compensation. By resolution of the Board of Directors,
------------
the directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 10. Presumption of Assent. A director of the corporation who
---------------------
is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
Section 11. Informal Action by Directors. Any action required to be
----------------------------
taken at a meeting of the directors, or any other action which may be taken at a
meeting of the directors, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
directors entitled to vote with respect to the subject matter thereof.
Section 12. Telephone Conference Meetings. Subject to other
-----------------------------
applicable provisions contained in these Bylaws, any action required by the Iowa
Business Corporation
5
<PAGE>
Act to be taken at a meeting of directors of the corporation, or any action
which may be taken at a meeting of the directors, or a committee of directors,
may be taken by means of conference telephone or similar communications
equipment through which all persons participating in the meeting can hear each
other, and the participation in a meeting pursuant to this provision shall
constitute presence of person at such meeting.
Section 13. Indemnification. This corporation shall indemnify each
---------------
director and officer of this corporation, now or hereafter, serving or having
served, to the fullest extent possible, against all obligations, including
attorney's fees, judgments, fines, settlements and reasonable expenses, actually
incurred by such director or officer, upon claim made by this corporation, by
any stockholder thereof or by any third party, relating to his or her conduct as
a director or officer of this corporation, except that the mandatory
indemnification required by this sentence shall not apply (i) to a breach of
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of the law, (iii) for a transaction from which a direction
derived an improper personal benefit, or (iv) under Section 496A.44 of the Iowa
Business Corporation Act. The foregoing right of indemnification shall not be
exclusive of other rights to which any director or officer may be entitled as a
matter of law.
ARTICLE IV
----------
OFFICERS
--------
Section 1. Number. The officers of the corporation shall be a
------
President, one or more Vice Presidents (the number thereof to be determined by
the Board of Directors), a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers
as may be deemed necessary may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same person.
Section 2. Election and Term of Office. The officers of the
---------------------------
corporation to be elected by the Board of Directors shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of the shareholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent elected or appointed by the
-------
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interest of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
6
<PAGE>
Section 4. Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. President. The President shall be the principal executive
---------
officer of the corporation, and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the shareholders and of the Board of Directors. He may sign, with the Secretary
or any other proper officer of the corporation thereunto authorized by the Board
of Directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these By-
Laws to some other officer or agent of the corporation, or shall be required by
law to be otherwise signed or executed; and in general shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Board of Directors from time to time.
Section 6. The Vice Presidents. In the absence of the President or
-------------------
in the event of his death, inability or refusal to act, the Vice President (or
in the event there be more than one Vice President, the Vice President
designated by the Board of Directors) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign, with the
Secretary or an Assistant Secretary, certificates for shares of the corporation;
and shall perform such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
Section 7. The Secretary. The Secretary shall: (a) keep the minutes
-------------
of the shareholders' and of the Board of Directors' meeting in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-Laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents the execution of which on behalf
of the corporation under its seal is duly authorized; (d) keep a register of the
post-office address of each shareholder which shall be furnished to the
Secretary by such shareholder; (e) sign with the President, or a Vice President,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (f) have general charge
of the stock transfer books of the corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the President or by the Board of Directors.
Section 8. The Treasurer. If required by the Board of Directors, the
-------------
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
7
<PAGE>
moneys in the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of Article V
of these By-Laws; and (b) in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the President or by the Board of Directors.
Section 9. Assistant Secretaries and Assistant Treasurers. The
----------------------------------------------
Assistant Secretaries, when authorized by the Board of Directors, may sign with
the President or a Vice President certificates for shares of the corporation the
issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their duties in
such sums and with such sureties as the Board of Directors shall determine. The
Assistant Secretaries and Assistant Treasurers, in general, shall perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 10. Salaries. The salaries of the officers shall be fixed
--------
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director of
the corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
Section 1. Contracts. The Board of Directors may authorize any
---------
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
-----
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders
-------------------
for the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
--------
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
8
<PAGE>
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------
Section 1. Certificates for Shares. Certificates representing shares
-----------------------
of the corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary. All certificates for
shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
books of the corporation. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the corporation
as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation
------------------
shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the corporation,
and on surrender for cancellation of the certificate for such shares. The
person in whose name shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all purposes.
ARTICLE VII
-----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall commence on January 1st of
each year.
ARTICLE VIII
------------
DIVIDENDS
---------
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its Articles of Incorporation.
ARTICLE IX
----------
SEAL
----
The corporation shall not have a corporate seal.
9
<PAGE>
ARTICLE X
---------
WAIVER OF NOTICE
----------------
Whenever any notice is required to be given to any shareholder or
director of the corporation under the provisions of the Articles of
Incorporation or under the provisions of the Iowa Business Corporation Act, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XI
----------
AMENDMENTS
----------
These By-Laws may be altered, amended or repealed and new By-Laws may
be adopted by the Board of Directors at any regular or special meeting of the
Board of Directors.
10
<PAGE>
Exhibit 3.28
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
ARTICLES OF INCORPORATION
OF
ST. CHARLES GAMING COMPANY, INC.
BE IT KNOWN, that on this 18th day of January, 1993, personally came and
appeared before me, the undersigned Notary Public, the incorporator or
incorporators named below, who are referred to herein in the plural, whether one
or more, all of full age of majority, who declared to me, in the presence of the
undersigned competent witnesses, that availing themselves of the provisions of
the Louisiana Business Corporation Law (LSA-R.S. 12:1, et seq.), they hereby
organize a corporation pursuant to the following Articles of Incorporation:
ARTICLE I
The name of this corporation is St. Charles Gaming Company, Inc.
ARTICLE II
The purpose of this corporation is to enter into any lawful business under
the laws of the State of Louisiana, either for its own account or for the
account of others, as agent, and either as agent or principal, to enter upon or
engage in any kind of business or activity of any nature whatsoever which
corporations under the Louisiana Business Corporation Law may engage and to the
extent not prohibited thereby to enter upon and to engage in any kind of
business of any nature whatsoever in any other state of the United States of
America, any foreign nation, and any territory of any country to the extent
permitted by the laws of such other state, nation or territory.
ARTICLE III
The duration of the corporation is perpetual.
ARTICLE IV
The aggregate number of shares which the corporation shall have authority
to issue is 100,000 shares of capital stock having no par value.
ARTICLE V
The full name and post office address of the incorporators are:
Barry W. Miller
3029 South Sherwood Forest Blvd.
Suite 110
Baton Rouge, Louisiana 70816
<PAGE>
ARTICLE VI
Any corporate action of shareholders, including specifically, but not by
way of limitation, adoption of amendments (including alterations, changes and
repeals) to the Articles, approval of merger and consolidation agreements,
authorization of voluntary disposition of all or substantially all of the
corporate assets and removal of a member of the Board of Directors, may be taken
on affirmative vote of 60% of the voting power of the shareholders and classes
thereof, if any, as shall be entitled to vote.
ARTICLE VII
No stock held by any stockholder of this corporation shall be sold or
transferred upon the books of the corporation without first giving this
corporation and then the other stockholders an opportunity to buy the stock as
follows:
Any stockholder desiring to sell all or any part of said stockholder's
stock shall first offer said stock for sale to this corporation and then to the
other stockholders for not more than the price at which the stockholder desires
to sell it to a third party. The corporation shall have a period of thirty (30)
days in which to purchase said stock from the date on which the stockholder
desiring to make such sale, shall file written notice with the Secretary of this
corporation of said stockholder's desire or intention to make said sale, giving
the terms and conditions at said sale is proposed to be made. Should the
corporation fail to exercise the option granted herein to it to purchase said
stock during the said thirty (30) day period, then the Secretary shall so notify
the other stockholders of said fact and for a period of thirty (30) additional
days the stockholders who may desire to purchase said stock shall have the right
to do so on a proportionate basis based on the number of shares of stock owned
by each stockholder desiring to participate in said purchase. At the expiration
of the said sixty (60) days, if neither this corporation nor any of the
stockholders have exercised this option to purchase said stock, then said
stockholder may sell it for not less than the price and upon the same terms as
were stated in said stockholder's notice to this corporation. In the event of
the death of a stockholder, these provisions shall not apply to the transfer of
the decedent's stock to heirs or his legatees, but shall be binding upon said
heirs and legatees.
ARTICLE VIII
No sale of any stock of this corporation shall be valid or binding until
and unless opportunity to purchase such stock shall have first been given to
this corporation and to the other stockholders in accordance with the provisions
of the foregoing Article VII and this right and option so vested in this
corporation and its stockholders to purchase said stock shall follow any of the
stock of this corporation which may be attempted to be sold without compliance
with the provisions of the foregoing Article VII into any hands into which said
shares of stock may be passed. Such rights may be exercised against the holder
or holders of such stock up to sixty (60) days after such shares are tendered
for transfer on the books of this corporation, and no transfer of nay such
shares shall be made on the books of this corporation without the written
consent of all of the other record
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holders of outstanding common stock of this corporation during the pendency of
said sixty (60) day period.
ARTICLE IX
Consent in writing to corporate action may be given by shareholders having
that proportion of the total voting power which would be required to authorize
or constitute such action at a meeting of the shareholders.
ARTICLE X
A. All of the corporate powers of this corporation shall be vested in, and
all of the business and affairs of this corporation shall be managed by a Board
of Directors.
B. The number of the directors shall be such number, not less than one (1)
nor more than fifteen (15) as may be designated in the bylaws and if not
designated, as may from time to time be elected by the shareholders, except that
when all of the outstanding shares are held of record by fewer than three
shareholders, then there need be only as many directors as there are
shareholders, but this shall not prevent a greater number of directors as
aforesaid.
C. The Board of Directors shall have authority to adopt, make and alter
bylaws, including the right to make and alter bylaws fixing their number,
qualification, classification or terms of office and of fixing or increasing
their compensation, subject to the power of any affirmative vote of sixty
percent (60%) of the voting power of the shareholders to change or repeal the
bylaws so made.
D. Any director absent from a meeting of the Board of Directors or any
committee thereof, may be represented by any other director who may cast the
absent director's vote according to his or her written instructions, general or
special.
ARTICLE XI
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, which are not claimed by the shareholders entitled thereto
within two (2) years after the dividend or redemption price became payable or
the shares became issuable, despite reasonable efforts of the corporation to pay
the dividend or redemption price or deliver the certificates for the shares to
such shareholders within such time, shall, at the expiration of such time,
revert in full ownership, to the corporation, and the corporation's obligation
to pay such dividend or redemption price or issue such shares, as the case may
be, shall thereupon cease; provided that the Board of Directors may at any time,
for any reason satisfactory to it, but need not, authorize (a) payment of the
amount of any cash or property dividend or redemption price or (b) issuance of
any shares, ownership of which has reverted to the corporation pursuant to this
Article, to the entity who or which would be entitled thereto had such reversion
not occurred.
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ARTICLE XII
Shareholders shall not have preemptive rights.
ARTICLE XIII
In the election of directors, each shareholder of record shall have the
right to multiply the number of votes to which he is entitled by the number of
directors to be elected, and to cast all such votes for one candidate, or
distribute them among any two or more candidates.
ARTICLE XIV
Special meetings of the shareholders may be called by the President or by a
majority of the Board of Directors.
ARTICLE XV
The incorporators, officers and directors of this corporation claim the
benefits of limitation of liability of the provisions of LSA-R.S. 12:24C (1968,
as amended 1987) to the fullest extent allowed by law as fully and completely as
though said provisions were recited herein in full.
THUS DONE, READ AND SIGNED in multiple originals in my office in the State
and Parish aforesaid, on the day, month and year hereinabove set forth, in the
presence of the undersigned competent witnesses and me, Notary, after due
reading of the whole.
WITNESSES: INCORPORATOR:
/s/ R.L. Lerronge /s/ Barry W. Miller
- ------------------------- -------------------------------
Barry W. Miller
/s/ Patricia Williams
- -------------------------
SWORN TO AND SUBSCRIBED before me, notary public, on the date
aforementioned.
/s/ Michael Shell
------------------------
Notary Public
(Notary Seal)
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ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
ST. CHARLES GAMING COMPANY, INC.
St. Charles Gaming Company, Inc., a Louisiana corporation (the "Company"),
through its undersigned President and Secretary, and by authority to its
shareholders, does hereby certify that:
FIRST: Crown Casino Corporation, a Louisiana corporation ("Crown"), and
Louisiana Riverboat Gaming Partnership, a Louisiana general partnership
("LRGP"), the only shareholders of the Company, adopted the following
resolutions to amend the Articles of Incorporation (the "Articles"), as in
effect prior to the date hereof, by written consent dated June 9, 1995. The
amendments to the Articles set forth herein, accurately set for the amendments
adopted by Crown and LRGP.
SECOND: The amendments have been effected in conformity with law.
RESOLVED, that Article VI of the Company's Articles, which currently reads
as follows:
Any corporate action of shareholders, including specifically, but not
by way of limitation, adoption of amendments (including alterations, changes and
repeals) to the Articles, approval of merger and consolidation agreements,
authorization of voluntary disposition of all or substantially all of the
corporate assets and removal of a member of the Board of Directors, may be taken
on affirmative vote of 60% of the voting power of the shareholders and classes
thereof, if any, as shall be entitled to vote.
be, and it hereby is, amended to read as follows:
Any corporate action of shareholders, including specifically but not
by way of limitation, adoption of amendments (including alterations, changes and
repeals) to the Articles, approval of merger and consolidation agreements,
authorization of voluntary disposition of all or substantially all of the
corporate assets and removal of a member of the Board of Directors, may be taken
on affirmative vote of 60% of the voting power of the shareholders and classes
thereof, if any, as shall be entitled to vote.
RESOLVED, that Article VII of the Company's Articles, which currently reads
as follows:
No stock held by any stockholder of this corporation shall be sold or
transferred upon the books of the corporation without first giving this
corporation and then the other stockholders an opportunity to buy the stock as
follows:
Any stockholder desiring to sell all or any part of said stockholder's
stock shall first offer said stock for sale to this corporation and then to the
other stockholders for not more than the
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price at which the stockholder desires to sell it to a third party. The
corporation shall have a period of thirty (30) days in which to purchase said
stock from the date on which the stockholder desiring to make such sale, shall
file written notice with the Secretary of this corporation of such stockholder's
desire or intention to make said sale, giving the terms and conditions at which
said sale is proposed to be made. Should the corporation fail to exercise the
option granted herein to it to purchase said stock during the said thirty (30)
day period, then the Secretary shall so notify the other stockholders of said
fact and for a period of thirty (30) additional days the stockholders who may
desire to purchase said stock shall be the right to do so on a proportionate
basis based on the number of shares of stock owned by each stockholder desiring
to participate in said purchase. At the expiration of the said sixty (60) days
if neither this corporation nor any of the stockholders have exercised this
option to purchase said stock, then said stockholder may sell it for not less
than the price and upon the same terms as were stated in said stockholder's
notice to this corporation. In the event of the death of a stockholder, these
provisions shall not apply to the transfer of the decedent's stock to heirs or
his legatees, but shall be binding upon said heirs and legatees.
be, and it hereby is, deleted in its entirety.
RESOLVED, that Article VIII of the Company's Articles, which currently
reads as follows:
No sale of any stock of this corporation shall be valid or binding
until and unless opportunity to purchase such stock shall have first been given
to this corporation and to the other stockholders in accordance with the
provisions of the foregoing Article VII and this right and option so vested in
this corporation and its stockholder to purchase said stock shall follow any of
the stock of this corporation which may be attempted to be sold without
compliance with the provisions of the foregoing Article VII into any hands into
which said shares of stock may be passed. Such rights may be exercised against
the holder or holders of such stock up to sixty (60) days after such shares are
tendered for transfer on the books of this corporation, and no transfer of any
such shares shall be made on the books of this corporation without the written
consent of all of the other record holders of outstanding common stock of this
corporation during the pendency of said sixty (60) day period.
be, and it hereby is, deleted in it entirety.
RESOLVED, that Paragraph B of Article X of the Company's Articles of
Incorporation, which currently reads as follows:
B. The number of directors shall be such number, not less than one
(1) nor more than fifteen (15) as may be designated in the bylaws and if not
designated, as may from time to time be elected by the shareholders, except that
when all of the outstanding shares are held of record by fewer than three
shareholders then there need be only as many directors as there are
shareholders, but this shall not prevent a greater number of directors as
aforesaid.
be, and it hereby is, amended to read as follows:
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B. The number of directors shall be such number, not less than one (1)
nor more than fifteen (15) as may be designated in the bylaws and if not
designated, as may from time to time be elected by the shareholders, except that
when all of the outstanding shares are held of record by fewer than three
shareholders, then there need be only as many directors as there are
shareholders, but this shall not prevent a greater number of directors as
aforesaid.
RESOLVED, that Paragraph C of Article X of the Company's Articles of
Incorporation, which currently reads as follows:
C. The Board of Directors shall have the Authority to adopt, make and
alter bylaws, including the right to make and alter bylaws fixing their number,
qualification, classification or terms of office and of fixing or increasing
their compensation, subject to the power of an affirmative vote of sixty percent
(60%) of the voting power of the shareholders to change or repeal the bylaws so
made.
be, and it hereby is, amended to read as follows:
C. The Board of Directors shall have the authority to adopt, make and
by unanimous vote, alter bylaws, including the right to make and alter bylaws
fixing their number, qualification, classification or terms of office and of
fixing or increasing their compensation, subject to the power of an affirmative
vote of sixty percent (60%) of the voting power of the shareholders to change or
repeal the bylaws so made.
RESOLVED, that Article XI of the Company's Articles, which currently reads
as follows:
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, which are not claimed by the shareholders entitled thereto
within two (2) years after the dividend or redemption price became payable or
the shares became issuable, despite reasonable efforts of the corporation to pay
the dividend or redemption price or deliver the certificates for the shares to
such shareholders within such time, shall, at the expiration of such time,
revert in full ownership, to the corporation, and the corporation's obligation
to pay such dividend or redemption price or issue such shares, as the case may
be, shall thereupon cease; provided that the Board of Directors may at any time,
for any reason satisfactory to it, but need not, authorize (a) payment of the
amount of any cash or property dividend or redemption price or (b) issuance of
any shares, ownership of which has reverted to the corporation pursuant to this
Article, to the entity who or which would be entitled thereto had such reversion
not occurred.
be, and it hereby is, amended to read as follows:
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, which are not claimed by the shareholders entitled thereto
within two (2) years after the dividend or redemption price became payable or
the shares became issuable, despite reasonable efforts of the corporation to pay
the
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<PAGE>
dividend or redemption price or deliver the certificates for the shares to
such shareholders within such time, shall, at the expiration of such time,
revert in full ownership, to the corporation, and the corporation's obligation
to pay such dividend or redemption price or issue such shares, as the case may
be, shall thereupon cease; provided that the Board of Directors may at any time,
for any reason satisfactory to it, but need not, authorize (a) payment of the
amount of any cash or property dividend or redemption price or (b) issuance of
any shares, ownership of which has reverted to the corporation pursuant to this
Article, to the entity who or which would be entitled thereto had such reversion
not occurred.
IN WITNESS WHEREOF the undesigned President and Secretary of the Company,
have executed these Articles of Amendment to the Company's Articles in
accordance with law on June 9, 1995.
ST. CHARLES GAMING COMPANY, INC.
By: /s/ Edward R. McMurphy
-------------------------------------
Edward R. McMurphy, President
and Chief Executive Officer
By: /s/ Mark D. Slusser
-------------------------------------
Mark D. Slusser, Secretary
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EXHIBIT 3.29
BY-LAWS OF
ST. CHARLES GAMING COMPANY, INC.
THESE BY-LAWS (the "By-Laws"), effective as of May 15, 1997, were
adopted by unanimous consent of the Board of Directors (the "Directors") of ST.
CHARLES GAMING COMPANY, INC. (the "Corporation"), a Louisiana corporation, as
follows:
1. Registered Office
The registered office of the Corporation and the principal business office
of the Corporation (the "Principal Business Office") shall be located at 307 I-
10 Service Road, in the City of Westlake, State of Louisiana, (70669) or such
other location as may be designated by the Directors from time to time.
2. Accounting and Reports for the Corporation
(a) Records and Accounting. The books and records of the Corporation shall
be kept, and the financial position and the results of its operations recorded,
in accordance with the accounting methods selected by the Directors from time to
time, and if not so selected, the books and records shall be maintained in
accordance with generally accepted accounting principles consistently applied.
The books and records of the Corporation shall reflect all the Corporation's
transactions and shall be appropriate and adequate for the Corporation's
business. The accounting year of the Corporation for financial reporting and for
federal income tax purposes shall be consistent with that of the Stockholder or
Stockholders.
(b) Access to Accounting Records. All books, records, files, securities
and other documents or information maintained by the Corporation shall be
maintained at the Principal Business Office or at any other office of the
Corporation agreed to by the Directors, and each Stockholder, as well as its
duly authorized representative, shall have access to all books and records at
the offices of the Corporation and the right to inspect and copy them at
reasonable times and upon reasonable notice.
(c) Outside Consultants. The Corporation may obtain the services of
outside accountants, attorneys and other consultants.
3. Shares
(a) Certificates of Stock. Every owner of stock of the Corporation shall
be entitled to a certificate, in such form as the Directors may prescribe,
certifying the number of shares of stock of the Corporation owned by him. The
certificates for such stock shall be numbered (separately for each class) in the
order in which they shall be issued and shall be signed in the name of the
Corporation by the Chairman, President or a Vice President, and by the
<PAGE>
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. Any signature
upon a certificate may be a facsimile. Certificates on which a facsimile
signature of a former officer, transfer agent or registrar appears may be issued
with the same effect as if he were such officer, transfer agent or registrar on
the date of issue.
(b) Stock Record. As used in these By-Laws, the term "stockholder" shall
mean the person, firm or corporation in whose name outstanding shares of capital
stock of the Corporation are currently registered on the stock record books of
the Corporation. A record shall be kept of the name of the person, firm or
corporation owning the stock represented by such certificates, the respective
dates thereof and, in the case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been surrendered and canceled (except as provided for in Section (d)
of this Article 3).
(c) Transfer of Shares. Transfer of shares on the books of the Corporation
may be authorized only by the Stockholder named in the certificate (or his legal
representative or duly authorized attorney-in-fact) and upon surrender for
cancellation of the certificate or certificates for such shares. The
Stockholder in whose name shares of stock stand on the books of the Corporation
shall be deemed the owner thereof for all purposes as regards the Corporation;
provided, that when any transfer of shares shall be made as collateral security
and not absolutely, such fact shall be so expressed in the entry of transfer if
both the transferor and the transferee request the Corporation to do so.
(d) Lost Certificates. Any Stockholder claiming a certificate of stock to
be lost or destroyed shall make an affidavit or affirmation of that fact in such
form as the Directors may require, and shall, if the Directors so require, give
the Corporation a bond of indemnity in form and with one or more sureties
satisfactory to the Directors of at least double the value, as determined by the
Directors, of the stock represented by such certificate in order to indemnify
the Corporation against any claim that may be made against it on account upon a
new certificate may be issued in the same tenor and for the same number of
shares as the one alleged to have been destroyed or lost.
(e) Treasury Stock. Treasury stock shall be held by the Corporation
subject to disposal by the Directors in accordance with the Articles of
Incorporation and these By-Laws, and shall not have voting rights nor
participate in dividends.
(f) Meetings. The annual meeting and all special meetings of Stockholders
may be held at such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. The annual meeting of
Stockholders shall be held on the date of the annual meeting for Casino America,
Inc. At the annual meeting the Stockholders, voting as provided in the Articles
of Incorporation, shall elect Directors and shall transact such other business
as may properly be brought before the meeting. Special meetings of the
Stockholders entitled to vote shall be called by the Secretary at any time
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<PAGE>
upon request of the Chairman of the Board of Directors, the President or the
Directors (acting upon majority vote) or upon request by Stockholders holding
ten percent (10%) or more of the voting power of the Stockholders. Meetings of
the Stockholders hereunder will be held upon no less than seven (7) and no more
than forty-five (45) days prior written notice delivered in accordance with
these By-Laws. Any Stockholder may vote at any meeting in person or by proxy.
Participation in any meeting of the Stockholders may be in person or by
telephone. Notice of any meeting may be waived in writing, either before or
after the meeting. The presence of a Stockholder at any meeting shall constitute
a waiver of notice and the form thereof, unless a Stockholder's presence at such
meeting is solely for the purpose of objecting to the form or notice of the
holding of a meeting without proper notice. The holders of a majority of all
shares outstanding and entitled to vote, represented either in person or by
proxy, shall constitute a quorum for the transaction of business at any annual
or special meeting of the Stockholders.
(g) Quorum and Voting. In case a quorum is not present or represented at
any meeting of the Stockholders, the Stockholders entitled to vote thereat
present in person or represented by proxy shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the original meeting. At each
meeting of the Stockholders, every Stockholder having the right to vote shall be
entitled to vote in person or by proxy. Except as otherwise provided by law or
the Certificate of Incorporation, each Stockholder of record shall be entitled
to one (1) vote for each share of stock having voting power standing in his name
on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, all other matters shall be determined by vote of
a majority of the shares present or represented at such meeting and voting on
such questions. The Directors may fix a time, not more than forty-five (45) nor
less than seven (7) days before the date of any meeting of Stockholders, as a
record date for the determination of the Stockholders entitled to notice of and
to vote at such meeting, notwithstanding any transfer of any shares on the books
of the Corporation after any record date so fixed.
4. Administrative Provisions
(a) Directors. All corporate powers shall be vested in, and the business
and affairs of the Corporation shall be managed by, a Board of Directors of not
less than three, nor more than seven, except that when all of the outstanding
shares are held of record by fewer than three Stockholders, then there may be as
many Directors as there are Stockholders. At each annual meeting, the
Stockholders shall determine the number of Directors. The number of Directors
may be increased by the Stockholders or by the Directors or may be decreased by
the Stockholders (if there are fewer Stockholders than three), or in the event
of any vacancy or vacancies, by the Directors to eliminate such
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<PAGE>
vacancies. Any decrease in the number of Directors by the Stockholders shall
have the effect of terminating the term of office of all Directors unless the
effect of such decrease is merely to eliminate a vacancy or vacancies. If such
decrease terminating the term of office of all Directors is effected at a
meeting of Stockholders, the new Directors shall be elected at such meeting.
Each Director shall hold office until the annual meeting held next after his
election and until his successor shall have been elected and qualified, until he
shall resign or until he shall have been removed by the Stockholders in the
manner provided by law.
(b) Vacancies. If a vacancy on the Board of Directors occurs by reason of
death, resignation, removal or otherwise or if a newly created directorship
results from an increase in the number of Directors, such vacancy may be filled
for the unexpired term by a majority vote of the Directors then in office or by
the sole remaining Director, although less than a quorum exists. Each person so
elected shall be a Director until his successor is elected by the Stockholders,
who may make such election at their next annual meeting or any special meeting
duly called for that purpose.
(c) Meetings of Directors. Regular meetings of the Directors shall be held
at such time and place as may from time to time be determined by the Directors.
No notice need be given of any regular meeting. Special meetings of the
Directors may be held at such time and place as may be designated in the notice
or the waiver of notice of the meeting. Special meetings of the Directors may
be called by the Chairman of the Board, the President, by any two (2) Directors,
or by any one (1) Director when there are two (2) Directors or less then
serving. Unless notice shall be waived by all Directors, notice of any special
meeting (including a statement of the purposes thereof) shall be given to each
Director at least twenty-four (24) hours in advance of the meeting if oral or
two (2) days in advance of the meeting if by mail, telegraph or other written
communication. Attendance at a meeting by any Director, without objection in
writing by him, shall constitute his waiver of notice of such meeting. A
majority of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that if any vacancies exist by
reason of death, resignation, removal or otherwise, a majority of the remaining
Directors shall constitute a quorum for the purpose of filling of such
vacancies.
(d) Disclosure to Gaming Regulatory Authorities. Each Director must agree
to provide such background information, including a financial statement, and
consent to such background investigation, as may be required by gaming
regulatory authorities of any state or other jurisdiction in or subject to which
the Corporation does or proposes to do business, and must agree to respond to
questions from such gaming regulatory authorities. If any Director is unwilling
or unable to obtain within a reasonable period of time any necessary approval by
gaming regulatory authorities in any such state or other jurisdiction, then such
Director shall, if so requested by a majority of the remaining Directors, resign
as a Director. If and to the extent required by the gaming regulatory
authorities of any state or other jurisdiction in which the Corporation does or
proposes to do business, or of any state or jurisdiction whose laws or
regulations are otherwise applicable to the Corporation, such Director shall
abstain
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from participating in any action with respect to operations of the Corporation
in such state or jurisdiction pending such background check or approval.
(e) Officers. The Corporation shall have officers elected by the
Directors. Each of the officers shall have all such powers, responsibilities
and obligations as are associated by custom or statute with their respective
offices under the Louisiana Business Corporation Law.
(f) Indemnification. The Corporation shall, and hereby does, fully
release, indemnify and hold any Stockholder, Director, officer, employee or
agent of the Corporation harmless from and against any loss, claim or other
liability the Stockholder, Director, officer, employee or agent of the
Corporation may incur at any time as a result of the indemnitee's service to the
Corporation, to the fullest extent permitted or required by the Louisiana
Business Corporation Law, as amended from time to time. The Corporation may
advance expenses incurred by the indemnitee by appropriate administrative action
under these By-Laws following the Corporation's receipt of the indemnitee's
agreement to reimburse the Corporation for the advance in the event of a
determination that the indemnitee is not entitled to indemnification by the
Corporation.
5. Profit or Losses
(a) Dividends. Subject to the provisions of the Certificate of
Incorporation and of these By-Laws, the Directors may declare dividends from the
net earnings or net assets of the Corporation available for dividends whenever
and in such amounts as, in its opinion, the condition of the affairs of the
Corporation shall render it advisable.
(b) Surplus and Reserves. Subject to the provisions of the Articles of
Incorporation and of these By-Laws, the Directors in their discretion may use
and apply any of the net earnings or net assets of the Corporation available for
such purpose to purchase or acquire any of the shares of the capital stock of
the Corporation in accordance with law, or any of its bonds, debentures, notes,
scrip or other securities or evidences of indebtedness, or from time to time may
set aside from its net assets or net earnings such sums as the Directors, in
their absolute discretion, may think proper as a reserve fund to meet
contingencies, for the purpose of maintaining or increasing the property or
business of the Corporation, or for any other purpose the Directors may think
conducive to the best interests of the Corporation.
6. Securities of Other Corporations.
(a) Voting Securities Held by the Corporation. Unless otherwise ordered by
the Directors, the President shall have full power and authority on behalf of
the Corporation to attend and to vote at any meeting of security holders of
other companies in which the Corporation may hold securities; to execute any
proxy for such meeting on behalf of the
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Corporation and to execute a written action in lieu of a meeting of such other
company on behalf of this Corporation. At such meeting, by such proxy or by such
writing in lieu of meeting, the President shall possess and may exercise any and
all rights and powers incident to the ownership of such securities that the
Corporation might have possessed and exercised if it had been present. The
Directors may, from time to time, confer like powers upon any other person or
persons.
(b) Purchase and Sale of Securities. Unless otherwise ordered by the
Directors, the President shall have full power and authority on behalf of the
Corporation to purchase, sell, transfer or encumber any and all securities of
any other company owned by the Corporation and may execute and deliver such
documents as may be necessary to effectuate such purchase, sale, transfer or
encumbrance. The Directors may, from time to time, confer like powers upon any
other person or persons.
7. General Provisions
(a) Waiver of Notice. Whenever any notice whatever is required to be given
by these By-Laws, the Articles of Incorporation or any of the Louisiana Business
Corporation Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the actual required notice.
(b) Participation by Conference Telephone. Directors, or any committee
designated by the Directors, may participate in a meeting of the Directors or of
such committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear and
communicate with each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting. The place of the
meeting shall be deemed to be the place of origination of the conference
telephone call or similar communication technique.
(c) Consents. Any action of the Stockholders, the Directors or any
committee of the Directors which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all of the holders of
shares who would be entitled to vote upon the action at a meeting for such
purpose, by all of the Directors, or by all of the members of such committee, as
the case may be; provided, however, that the foregoing shall not be construed to
alter or modify any provision of law or the Articles of Incorporation pursuant
to which the written consent of holders of less than all outstanding shares is
sufficient for corporate action by Stockholders.
(d) Power to Amend. The Directors shall have power to amend, repeal or
adopt By-Laws at any regular meeting or at any special meeting called for that
purpose, subject to the power of the Stockholders to change or repeal such By-
Laws and subject to any other limitations on such authority of the Directors
provided by the Louisiana Business Corporation Laws.
6
<PAGE>
Exhibit 5.1
MAYER, BROWN & PLATT
190 South LaSalle Street
Chicago, Illinois 60603-3441
______________, 1999
Isle of Capri Casinos, Inc.
711 Washington Loop
Biloxi, Mississippi 39530
Re: Registration Statement on Form S-4 Relating to
8 3/4% Senior Subordinated Notes Due 2009, Series B
---------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Isle of Capri Casinos, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a registration statement on Form S-4 (the "Registration Statement")
relating to the Company's 8 3/4% Senior Subordinated Notes due 2009, Series B
(the "New Notes") and the related guarantees (the "Subsidiary Guarantees") of
certain subsidiaries of the Company listed on Annex A to this opinion (the
"Subsidiary Guarantors"). The New Notes will be offered in exchange for any and
all of the Company's outstanding 8 3/4% Senior Subordinated Notes due 2009,
Series A (the "Old Notes"). The Old Notes were issued, and the New Notes will
be issued, under an Indenture, dated as of April 23, 1999 (the "Indenture"),
among the Company, the Subsidiary Guarantors and State Street Bank and Trust
Company, as trustee.
In rendering the opinions set forth below, we have examined and relied upon
such documents, corporate records, certificates of public officials and
certificates as to factual matters executed by officers of the Company and the
Subsidiary Guarantors as we have deemed necessary or appropriate. We have
assumed the authenticity, accuracy and completeness of all documents, records
and certificates submitted to us as originals, the conformity to the originals
of all documents, records and certificates submitted to us as copies and the
authenticity, accuracy and completeness of the originals of all documents,
records and certificates submitted to us as copies. We have also assumed the
legal capacity and genuineness of the signatures of persons signing all
documents in connection with the opinions set forth below.
Based upon the foregoing, we are of the opinion that:
<PAGE>
1. The New Notes have been duly authorized for issuance by the Company and,
upon the due execution, authentication, issuance and delivery thereof in
accordance with the terms of the Indenture, the New Notes will constitute
valid and legally binding obligations of the Company, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforceability of creditors' rights generally and to court decisions
with respect thereto and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
2. The Subsidiary Guarantees have been duly authorized for issuance by the
Subsidiary Guarantors and constitute valid and legally binding obligations
of the Subsidiary Guarantors, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforceability of
creditors' rights generally and to court decisions with respect thereto and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Registration Statement.
Very truly yours,
Mayer, Brown & Platt
PWT/dmm
<PAGE>
ANNEX A
SUBSIDIARY GUARANTORS
---------------------
CSNO, Inc., a Louisiana corporation
Grand Palais Riverboat, Inc., a Louisiana corporation
IOC-Coahoma, Inc., a Mississippi corporation
Isle of Capri Casino-Tunica, Inc., a Mississippi corporation
Isle of Capri Casino Colorado, Inc., a Colorado corporation
Isle of Capri Hotels-Bossier City, L.L.C., a Louisiana limited liability company
Louisiana Riverboat Gaming Partnership, a Louisiana partnership
LRG Hotels, L.L.C., a Louisiana limited liability company
LRGP Holdings, Inc., a Louisiana corporation
PPI, Inc., a Florida corporation
Riverboat Corporation of Mississippi, a Mississippi corporation
Riverboat Corporation of Mississippi-Vicksburg, a Mississippi corporation
Riverboat Services, Inc., an Iowa corporation
St. Charles Gaming Company, Inc., a Louisiana corporation
<PAGE>
EXHIBIT 12.1
STATEMENT RE: COMPUTATION OF HISTORICAL
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Fiscal Year Ended
---------------------------------------------------------------
April 30, April 30, April 27, April 26, April 25,
1995 1996 1997 1998 1999
---------------------------------------------------------------
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Consolidated pretax income from
continuing operations $30.0 $4.9 ($10.4) $15.0 $23.9
Less equity (loss) of unconsolidated
joint venture 19.9 16.4 (0.2) 0.0 (1.3)
Interest expense 14.0 16.8 40.3 54.3 55.8
Less capitalized interest 0.0 1.5 0.0 2.7 7.2
Interest portion of rental expense 0.8 1.0 1.6 1.4 2.8
-----------------------------------------------------------
Earnings $24.9 $4.8 $31.7 $68.0 $76.6
===========================================================
Interest expense $14.0 $16.8 $40.3 $54.3 $55.8
Interest portion of rental expense 0.8 1.0 1.6 1.4 2.8
-----------------------------------------------------------
Fixed charges $14.8 $17.8 $41.9 $55.7 $58.6
-----------------------------------------------------------
Ratio of earnings to fixed charges 1.7x -- -- 1.2x 1.3x
===========================================================
</TABLE>
For purposes of determining the ratio of earnings to fixed charges, earnings
consist of earnings before provision for income taxes plus fixed charges,
excluding capitalized interest. Fixed charges consist of interest on
indebtedness, including capitalized interest, plus that portion of rental
expense that is considered to be interest. Earnings were inadequate to cover
fixed charges by $13.0 million for fiscal 1996 and $10.2 million for fiscal
1997.
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) of Isle of Capri Casinos, Inc. for the offer
to exchange up to $390,000,000 of its 8 3/4% Senior Subordinated Notes due 2009,
Series B for all of its outstanding 8 3/4% Senior Subordinated Notes due 2009,
Series A and to the incorporation by reference therein of our report dated June
10, 1999, with respect to the consolidated financial statements of Isle of Capri
Casinos, Inc. incorporated by reference in its Annual Report (Form 10-K) at
April 25, 1999 and April 26, 1998 and for the years ended April 25, 1999, April
26, 1998 and April 27, 1997, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
New Orleans, Louisiana
June 30, 1999
<PAGE> EXHIBIT 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF l939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
[ ] CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
STATE STREET BANK AND TRUST COMPANY
------------------------------------------------------------
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
- --------------------------- -------------------------
(State of incorporation if (I.R.S. Employer
not a national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Maureen Bateman, Corporate Secretary,
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
------------------------------------------------------------
(Name, address and telephone number of agent for service)
ISLE OF CAPRI CASINOS, INC.
------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware 41-1659606
- ---------------------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
711 Washington Loop, Second Floor, Biloxi, Mississippi 39530
-------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
8 3/4% Senior Subordinated Notes Due April 15, 2009, Series B
------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item l. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject:
Department of Banking and Insurance of
The Commonwealth of Massachusetts
100 Cambridge Street
Boston, Massachusetts
Board of Governors of the Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers:
The trustee is so authorized.
Item 2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee or its parent, State Street
Corporation.
Item l6. List of exhibits. List below all exhibits filed as a part of this
statement of eligibility and qualification.
l. A copy of the Articles of Association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission as
Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
2. A copy of the Certificate of Authority of the trustee to do
Business.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to
commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1)
-2-
<PAGE>
filed with Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A copy of the Certification of Fiduciary Powers of the Trustee.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
4. A copy of the By-laws of the trustee as now in effect.
A copy of the By-Laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with Registration Statement of Eastern Edison Company
(File No. 33-37823) and is incorporated herein by reference
thereto.
5. A consent of the trustee required by Section 32l(b) of the Act is
annexed hereto as Exhibit 5 and made a part hereof.
6. A copy of the latest Consolidated Reports of Condition of the
trustee, published pursuant to law or the requirements of its
supervising or examining authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 6 and made a
part hereof.
-3-
<PAGE>
NOTES
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base its answer to Item 2, the answer to said
Item is based upon incomplete information. Said Item may, however, be
considered correct unless amended by an amendment to this Form T-1.
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of l939, the
trustee, State Street Bank and Trust Company, a Massachusetts trust company, has
duly caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Hartford, and State of Connecticut, on the 28th day of June, 1999.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Steven Cimalore
------------------------------------------
Name: Steven Cimalore
Title: Vice President
-5-
<PAGE>
EXHIBIT 5
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
----------------------------------
The undersigned, as Trustee under an Indenture entered into between
Isle of Capri Casinos, Inc. and State Street Bank and Trust Company, Trustee,
does hereby consent that, pursuant to Section 321(b) of the Trust Indenture Act
of 1939, reports of examinations with respect to the undersigned by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Steven Cimalore
-----------------------
Name: Steven Cimalore
Title: Vice President
Dated: June 28, 1999
<PAGE>
EXHIBIT 6
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business December 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin....................... 1,209,293
Interest-bearing balances................................................ 12,007,895
Securities.................................................................... 9,705,731
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary...................................... 9,734,476
Loans and lease financing receivables:
Loans and leases, net of unearned income.............6,973,125
Allowance for loan and lease losses.................. 84,308
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances.................. 6,888,817
Assets held in trading accounts............................................... 1,574,999
Premises and fixed assets..................................................... 523,514
Other real estate owned....................................................... 0
Investments in unconsolidated subsidiaries.................................... 612
Customers' liability to this bank on acceptances outstanding.................. 47,334
Intangible assets............................................................. 212,743
Other assets.................................................................. 1,279,224
----------
Total assets.................................................................. 43,184,638
==========
LIABILITIES
Deposits:
In domestic offices...................................................... 10,852,862
Noninterest-bearing.............................8,331,830
Interest-bearing................................2,521,032
In foreign offices and Edge subsidiary................................... 16,761,573
Noninterest-bearing................................83,010
Interest-bearing...............................16,678,563
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary...................................... 10,041,324
Demand notes issued to the U.S. Treasury...................................... 108,420
Trading liabilities...................................................... 1,240,938
Other borrowed money.......................................................... 322,331
Subordinated notes and debentures............................................. 0
Bank's liability on acceptances executed and outstanding...................... 47,334
Other liabilities............................................................. 1,126,058
Total liabilities............................................................. 40,500,840
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................. 0
Common stock.................................................................. 29,931
Surplus....................................................................... 468,511
Undivided profits and capital reserves/Net unrealized holding gains (losses).. 2,164,055
Net unrealized holding gains (losses) on available-for-sale securities... 21,638
Cumulative foreign currency translation adjustments........................... (337)
Total equity capital.......................................................... 2,683,798
----------
Total liabilities and equity capital.......................................... 43,184,638
----------
</TABLE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
<PAGE>
Exhibit 99.1
LETTER OF TRANSMITTAL
EXCHANGE OFFER
(PURSUANT TO THE PROSPECTUS DATED , 1999)
8 3/4% Senior Subordinated Notes due 2009, Series B
for all outstanding
8 3/4% Senior Subordinated Notes due 2009, Series A
OF
ISLE OF CAPRI CASINOS, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,ON ,
1999, UNLESS EXTENDED (THE "EXPIRATION DATE").
The Exchange Agent for the Exchange Offer is:
State Street Bank and Trust Company
By Registered or Certified Mail: By Hand or Overnight Courier:
State Street Bank and Trust Company State Street Bank and Trust Company
Corporate Trust Department Corporate Trust Window, 5th Floor
P.O. Box 778 2 Avenue de Lafayette
Boston, Massachusetts 02102-0778 Boston, Massachusetts 02111-1724
To Confirm by Telephone or for Information:
(617) 662-1525
Attn: Mackenzie Elijah
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
YOU SHOULD READ THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL
BEFORE YOU COMPLETE THIS LETTER OF TRANSMITTAL.
The undersigned hereby acknowledges receipt of the Prospectus, dated
, 1999 (as it may be amended or supplemented from time to time, the
"Prospectus"), of Isle of Capri Casinos, Inc., a Delaware corporation (the
"Company"), and this Letter of Transmittal, which together constitute the
Company's offer (the "Exchange Offer") to exchange up to $390,000,000
principal amount of its 8 3/4% Senior Subordinated Notes due 2009, Series B
(the "New Notes"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a registration statement
of which the Prospectus is a part, for an identical principal amount of its
outstanding 8 3/4% Senior Subordinated Notes due 2009, Series A (the "Old
Notes"). Capitalized terms not otherwise defined in this Letter of Transmittal
are defined in the Prospectus.
This Letter of Transmittal is to be used if (1) certificates of Old Notes
are to be forwarded to the Exchange Agent, (2) delivery of Old Notes is to be
made by book-entry transfer to an account maintained by the Exchange Agent at
The Depository Trust Company ("DTC") pursuant to the procedures set forth
under the heading "The Exchange Offer--Procedures for Tendering Old Notes" in
the Prospectus or (3) tender of the Old Notes is to be made according to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer--Guaranteed Delivery Procedures."
<PAGE>
Holders who wish to tender their Old Notes and (1) whose Old Notes are not
immediately available, (2) who cannot deliver their Old Notes, this Letter of
Transmittal or any other documents required by this Letter of Transmittal to
the Exchange Agent on or prior to the Expiration Date or (3) who cannot
complete the procedures for book-entry transfer on a timely basis, may tender
their Old Notes according to the guaranteed delivery procedures set forth in
the Prospectus under the heading "The Exchange Offer--Guaranteed Delivery
Procedures." See Instruction 2.
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus and this Letter of Transmittal should be directed to the exchange
agent.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, list the certificate numbers and
principal amount on a separate signed schedule and attach that schedule to
this Letter of Transmittal. See Instruction 4.
ALL TENDERING HOLDERS MUST COMPLETE THIS BOX:
Description of Old Notes Tendered
- -------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Old Notes Tendered
Holder (Fill in, if blank)
- -------------------------------------------------------------------------------
Aggregate
Certificate Principal Principal
or Amount Amount
RegistrationRepresented Tendered**
Number(s)* by Old
Notes
-------------------------------------
<TABLE>
<S> <C> <C>
$ $
-----------------
-----------------
-----------------
-----------------
$ $
</TABLE>
Total Amount Tendered:
- -------------------------------------------------------------------------------
*Need not be completed by book-entry holders. Such holders should check the
appropriate box below and provide the requested information.
**Unless otherwise indicated, the holder will be deemed to have tendered the
full aggregate principal amount represented by such Old Notes. All
tenders must be in integral multiples of $1,000.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with
respect to the Exchange Offer. Holders who wish to tender their Old Notes must
complete this letter in its entirety.
2
<PAGE>
(THE FOLLOWING BOXES ARE TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_]
CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT AT DTC AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
DTC Account Number: ________________________________________________________
Transaction Code Number: ___________________________________________________
[_]
CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s): ___________________________________________
Date of Execution of Notice
of Guaranteed Delivery: ____________________________________________________
Name of Eligible Institution Which Guaranteed Delivery: ____________________
If Guaranteed Delivery is to be made by book-entry transfer:
DTC Account Number: ________________________________________________________
Transaction Code Number: ___________________________________________________
[_]
CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED OLD NOTES FOR YOUR OWN
ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES
(A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________________________________________________
Address: ___________________________________________________________________
---------------------------------------------------------------------
Telephone Number and Contact Person: _______________________________________
3
<PAGE>
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the above described principal amount
of Old Notes in exchange for an identical principal amount of New Notes.
Subject to, and effective upon, the acceptance for exchange of the Old Notes
tendered with this Letter of Transmittal, the undersigned hereby exchanges,
assigns and transfers to or upon the order of the Company all right, title and
interest in and to such Old Notes as are being tendered with this Letter of
Transmittal, including all rights to accrued and unpaid interest on such Old
Notes as of the Expiration Date. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) to cause the Old Notes to be
assigned, transferred and exchanged.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT (1) THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, ASSIGN AND TRANSFER THE OLD
NOTES TENDERED HEREBY AND TO ACQUIRE NEW NOTES ISSUABLE UPON THE EXCHANGE OF
SUCH TENDERED OLD NOTES; (2) WHEN THE OLD NOTES ARE ACCEPTED FOR EXCHANGE, THE
COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE TO SUCH OLD
NOTES, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES AND
(3) THE OLD NOTES TENDERED WITH THIS LETTER OF TRANSMITTAL ARE NOT SUBJECT TO
ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT
TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER
OF THE OLD NOTES TENDERED WITH THIS LETTER OF TRANSMITTAL. THE UNDERSIGNED HAS
READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The undersigned understands that tenders of Old Notes pursuant to any one
of the procedures set forth in "The Exchange Offer--Procedures for Tendering
Old Notes" in the Prospectus and in the instructions to this Letter of
Transmittal will, upon the Company's acceptance for exchange of such tendered
Old Notes, constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Exchange Offer.
The undersigned also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Exchange Agent or the Company
to be necessary or desirable to complete the exchange, assignment and transfer
of tendered Old Notes or to transfer ownership of such Old Notes on the
account books maintained by a book-entry transfer facility. The undersigned
further agrees that (1) acceptance of any tendered Old Notes by the Company
and the issuance of New Notes in exchange for such Old Notes shall constitute
performance in full by the Company of its obligations under the registration
rights agreement that contemplates the registration of the Old Notes under the
Securities Act and (2) the Company shall have no further obligations or
liabilities under such registration rights agreement for the registration of
the Old Notes or the New Notes.
The Exchange Offer is not conditioned upon any principal amount of Old
Notes being tendered for exchange. However, the Exchange Offer is subject to
certain conditions set forth in the Prospectus under the heading "The Exchange
Offer--Conditions of the Exchange Offer." The undersigned recognizes that, as
a result of these conditions (which may be waived, in whole or in part, by the
Company) and as more particularly set forth in the Prospectus, the Company may
not be required to exchange any of the Old Notes tendered with this Letter of
Transmittal and, in such event, the Old Notes not exchanged will be returned
to the undersigned at the address shown below the signature of the
undersigned.
The name(s) and address(es) of the registered holder(s) of the Old Notes
tendered with this Letter of Transmittal should be printed below, if they are
not already set forth above, as they appear on the certificates representing
such Old Notes. The certificate number(s) and the Old Notes that the
undersigned wishes to tender should be indicated in the appropriate boxes
above.
4
<PAGE>
The undersigned acknowledges that the Exchange Offer is being made in
reliance on the position of the staff of the Securities and Exchange Commission
as set forth in certain interpretive letters addressed to third parties in
other transactions substantially similar to the Exchange Offer, which lead the
Company to believe that New Notes issued pursuant to the Exchange Offer to a
holder in exchange for Old Notes may be offered for resale, resold and
otherwise transferred by a holder other than (1) a broker-dealer that purchased
Old Notes directly from the Company to resell them pursuant to Rule 144A under
the Securities Act or any other available exemption under the Securities Act,
(2) an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (3) a holder that intends to participate in the Exchange Offer
for the purpose of distributing (within the meaning of the Securities Act) the
New Notes or (4) a holder that does not acquires the New Notes in the ordinary
course of its business. Accordingly, the undersigned represents that (1) it is
not a broker-dealer that acquired Old Notes directly from the Company in order
to resell them pursuant to Rule 144A under the Securities Act or any other
available exemption under the Securities Act, (2) it is not an "affiliate" of
the Company as defined in Rule 405 under the Securities Act, (3) it is not
participating, and does not intend to participate, and has no arrangement or
understanding with any person to participate, in the distribution of the New
Notes and (4) it will acquire the New Notes in the ordinary course of its
business.
If the undersigned is a broker-dealer that will receive New Notes for its
own account in exchange for Old Notes, it further represents that it acquired
the Old Notes for its own account as a result of market-making activities or
other trading activities and acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Notes. However, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of Section 2(11) of the Securities Act. Failure to comply with any
of the above-mentioned requirements could result in the undersigned or any such
other person incurring liability under the Securities Act for which such
persons are not indemnified by the Company.
The undersigned acknowledges that if it is unable to make the above
representations to the Company, it will not be able to rely on the
interpretations of the staff of the Securities and Exchange Commission
described above and, therefore, will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or other transfer of such New Notes unless such sale
is made pursuant to an exemption from such requirements.
Unless otherwise indicated in the box entitled "Special Exchange
Instructions" or the box entitled "Special Delivery Instructions" in this
Letter of Transmittal, certificates for all New Notes delivered in exchange for
tendered Old Notes, and any Old Notes delivered with this Letter of Transmittal
but not exchanged, will be registered in the name of the undersigned and will
be delivered to the undersigned at the address shown below the signature of the
undersigned. If a New Note is to be issued to a person other than the person(s)
signing this Letter of Transmittal or if a New Note is to be mailed to someone
other than the person(s) signing this Letter of Transmittal or to the person(s)
signing this Letter of Transmittal at an address different than the address
shown in this Letter of Transmittal, the appropriate boxes of this Letter of
Transmittal should be completed. If Old Notes are surrendered by holder(s) that
have completed either the box entitled "Special Exchange Instructions" or the
box entitled "Special Delivery Instructions" in this Letter of Transmittal, all
signatures must be guaranteed by a Medallion Signature Guarantor (as defined in
Instruction 3).
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death or incapacity of the undersigned. Any
obligation of the undersigned under this Letter of Transmittal shall be binding
upon the heirs, executors, administrators, personal representatives, trustees
in bankruptcy, legal representatives, successors and assigns of the
undersigned. Tendered Old Notes may be withdrawn in accordance with Instruction
3 to this Letter of Transmittal at any time prior to the Expiration Date.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES
TENDERED" AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD
NOTES DESCRIBED IN SUCH BOX.
5
<PAGE>
REGISTERED HOLDERS OF OLD NOTES SIGN HERE
(IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 BELOW)
PLEASE SIGN HERE PLEASE SIGN HERE
- ------------------------------------- -------------------------------------
Authorized Signature of Registered Holder Authorized Signature of Registered
Holder
Must be signed by registered holder(s) exactly as name(s) appear(s) on the Old
Notes or on a security position listing as the owner of the Old Notes or by
the person(s) authorized to become the registered holder(s) by properly
completed bond powers transmitted with this Letter of Transmittal. See
Instruction 4. If signature is by attorney-in-fact, trustee, executor,
administrator, guardian, officer of a corporation or other person acting in a
fiduciary or representative capacity, please provide the following
information:
Name: _______________________________ Name: _______________________________
Title: ______________________________ Title: ______________________________
Address: ____________________________ Address: ____________________________
- ------------------------------------- -------------------------------------
Telephone Number: ___________________ Telephone Number: ___________________
Dated: ______________________________ Dated: ______________________________
- ------------------------------------- -------------------------------------
Taxpayer Identification or Social Taxpayer Identification or Social
Security Number Security Number
6
<PAGE>
Signature Guarantee
(If required--see Instruction 4)
Signature(s) Guaranteed: __________ Date: ______________________________
Authorized Signature
Date: ______________________________
-----------------
Authorized Signature Address: ___________________________
Name of Medallion ------------------------------
Signature Guarantor(s): ___________
------------------------------
Capacity (full title): ____________ Zip Code
Telephone Number: _________________
SPECIAL EXCHANGE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5) (See Instructions 4 and 5)
To be completed ONLY if the New To be completed ONLY if the New
Notes or any Old Notes that are Notes or any Old Notes that are
not tendered or are not accepted not tendered or are not accepted
are to be issued in the name of are to be sent to someone other
someone other than the than the undersigned or to the
undersigned. undersigned at an address other
than the address set forth under
"Description of Old Notes
Tendered."
Issue:
[_] New Notes to:
[_] Old Notes to:
Mail:
Name(s) ___________________________ [_] New Notes to:
[_] Old Notes to:
Address ___________________________
Name(s) ___________________________
-----------------------------------
Address ___________________________
Telephone Number: _________________
-----------------------------------
Book-Entry Transfer Facility
Account: __________________________ Telephone Number: _________________
-----------------------------------
-----------------------------------
----------------------------------- (Tax Identification or Social
(Tax Identification or Social Security Number)
Security Number)
7
<PAGE>
INSTRUCTIONS
(Forming Part of the Terms and Conditions of the Exchange Offer)
1. Delivery of this Letter of Transmittal and Certificates. All physically
delivered Old Notes or confirmation of any book-entry transfer to the Exchange
Agent's account at DTC, as well as a properly completed and duly executed copy
of this Letter of Transmittal and any other documents required by this Letter
of Transmittal, must be received by the Exchange Agent at any of its addresses
set forth in this Letter of Transmittal on or prior to the Expiration Date.
The method of delivery of this Letter of Transmittal, the Old Notes and all
other required documents is at the election and risk of the holder. Instead of
delivery by mail, the Company recommends that holders use an overnight or hand
delivery service. Except as otherwise provided below, the delivery will be
deemed made only when actually received by the Exchange Agent.
Any beneficial holder whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender Old Notes in the Exchange Offer should contact such registered
holder promptly and instruct such registered holder to tender on such
beneficial holder's behalf. If a beneficial holder wishes to tender directly,
the beneficial holder must, prior to completing and executing the Letter of
Transmittal and tendering Old Notes, either make appropriate arrangements to
register ownership of the Old Notes in such beneficial holder's own name or
obtain a properly completed bond power from the registered holder. Beneficial
holders should be aware that the transfer of registered ownership may take
considerable time.
Delivery of the Letter of Transmittal to an address other than as set forth
above does not constitute a valid delivery.
The Company expressly reserves the right, at any time or from time to time,
to extend the Expiration Date by complying with certain conditions set forth
in the Prospectus.
LETTERS OF TRANSMITTAL SHOULD NOT BE SENT TO THE COMPANY OR TO DTC.
2. Guaranteed Delivery Procedures. Holders who wish to tender their Old
Notes and (1) whose Old Notes are not immediately available, (2) who cannot
deliver their Old Notes, the Letter of Transmittal or any other required
documents to the Exchange Agent prior to the Expiration Date or (3) who cannot
complete the procedures for book-entry transfers on a timely basis, may effect
a tender if:
a. the tender is made through a member firm of a registered national
securities exchange or of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent
in the United States or an "eligible guarantor institution" within the
meaning of Rule
17Ad-15 under the Exchange Act (an "Eligible Institution");
b. prior to the Expiration Date, the Exchange Agent receives from such
holder and the Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by mail or hand delivery) setting forth the
name and address of the holder of Old Notes, the certificate or
registration number(s) of the tendered Old Notes and the principal amount
of Old Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within four (4) business days after the Expiration Date,
the tendered Old Notes, a duly executed Letter of Transmittal and any other
required documents will be deposited by the Eligible Institution with the
Exchange Agent; and
c. a properly completed and duly executed Letter of Transmittal, any
other required documents and tendered Old Notes in proper form for transfer
(or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account at DTC) must be received by the Exchange Agent
within four (4) business days after the Expiration Date.
Any holder who wishes to tender Old Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent
receives the Notice of Guaranteed Delivery relating to such Old Notes prior to
the Expiration Date. Failure to complete the guaranteed delivery procedures
outlined above will not, of itself, affect the validity or effect a revocation
of any Letter of Transmittal form properly completed and executed by a holder
who attempted to use the guaranteed delivery procedures.
8
<PAGE>
3. Partial Tenders; Withdrawals. Tenders of Old Notes will be accepted only
in integral multiples of $1,000 principal amount at maturity. If less than the
entire principal amount of Old Notes evidenced by a submitted certificate is
tendered, the tendering holder should fill in the principal amount tendered in
the column entitled "Principal Amount Tendered" of the box entitled
"Description of Old Notes Tendered." A newly issued Old Note for the principal
amount of Old Notes submitted but not tendered will be sent to such holder,
unless the appropriate boxes on this Letter of Transmittal are completed, as
soon as practicable after the Expiration Date. All Old Notes delivered to the
Exchange Agent will be deemed to have been tendered in full unless otherwise
indicated.
Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at
any time prior to the Expiration Date, after which tenders of Old Notes are
irrevocable. To withdraw a tender of Old Notes in the Exchange Offer, a written
or facsimile transmission notice of withdrawal must be received by the Exchange
Agent by 5:00 p.m., New York City time, on the Expiration Date. Any such notice
of withdrawal must (1) specify the name of the person having deposited the Old
Notes to be withdrawn (the "Depositor"), (2) identify the Old Notes to be
withdrawn (including the certificate or registration number(s) and principal
amount of such Old Notes or, in the case of Old Notes transferred by book-entry
transfer, the name and number of the account at DTC to be credited), (3) be
signed by the Depositor in the same manner as the original signature on this
Letter of Transmittal (including any required signature guarantees) or be
accompanied by a bond power in the name of the person withdrawing the tender,
in satisfactory form as determined by the Company in its sole discretion, duly
executed by the registered holder, with the signature guaranteed by a
participant in a recognized Medallion Signature Program (a "Medallion Signature
Guarantor") together with the other documents required upon transfer by the
indenture governing the Old Notes and the New Notes and (4) specify the name in
which such Old Notes are to be registered, if different from that of the
Depositor, pursuant to such documents of transfer.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by the Company, in its sole
discretion, whose determination shall be final and binding on all parties. Any
Old Notes so withdrawn will be deemed not to have been validly tendered for
purposes of the Exchange Offer and no New Notes will be issued with respect
thereto unless the Old Notes so withdrawn are validly retendered. Any Old Notes
which have been tendered but which are not accepted for exchange will be
returned to the holder without cost to such holder as soon as practicable after
withdrawal.
4. Signature on this Letter of Transmittal; Written Instruments and
Endorsements; Guarantee of Signatures. If this Letter of Transmittal is signed
by the registered holder(s) of the Old Notes tendered with this Letter of
Transmittal, the signature must correspond with the name(s) as written on the
face of the certificates without alteration or enlargement or any change
whatsoever. If this Letter of Transmittal is signed by a participant in DTC,
the signature must correspond with the name as it appears on the security
position listing as the owner of the Old Notes.
If any of the Old Notes tendered with this Letter of Transmittal are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If a number of Old Notes registered in different names are tendered, it will
be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal as there are different registrations of Old Notes.
Signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by a Medallion Signature Guarantor unless the
Old Notes tendered with this Letter of Transmittal are tendered (1) by a
registered holder who has not completed the box entitled "Special Exchange
Instructions" or "Special Delivery Instructions" on the Letter of Transmittal
or (2) for the account of an Eligible Institution.
If this Letter of Transmittal is signed by the registered holder or holders
of Old Notes (which term, for the purposes described in this Letter of
Transmittal, shall include a participant in DTC whose name appears on a
security listing as the owner of the Old Notes) listed and tendered with this
Letter of Transmittal, no endorsements of the tendered Old Notes or separate
written instruments of transfer or exchange are required. In
9
<PAGE>
any other case, the registered holder (or acting holder) must either properly
endorse the Old Notes or transmit properly completed bond powers with this
Letter of Transmittal (in either case executed exactly as the name(s) of the
registered holder(s) appear(s) on the Old Notes and, with respect to a
participant in DTC whose name appears on a security position listing as the
owner of Old Notes, exactly as the name of the participant appears on such
security position listing), with the signature on the Old Notes or bond power
guaranteed by a Medallion Signature Guarantor.
If this Letter of Transmittal, any certificates or separate written
instruments of transfer or exchange are signed by attorneys-in-fact, trustees,
executors, administrators, guardians, officers of corporations or others acting
in a fiduciary or representative capacity, such persons should so indicate when
signing and, unless waived by the Company, proper evidence satisfactory to the
Company of their authority so to act must be submitted.
5. Special Exchange and Delivery Instructions. Tendering holders should
indicate, in the applicable box, the name and address (or account at DTC) in
which the New Notes or Old Notes for principal amounts not tendered or not
accepted for exchange are to be issued and delivered (or deposited), if
different from the names and addresses or accounts of the person signing this
Letter of Transmittal. In the case of issuance in a different name, the
taxpayer identification number or social security number of the person named
must also be indicated and the tendering holder should complete the applicable
box.
If no instructions are given, the New Notes (and any Old Notes not tendered
or not accepted) will be issued in the name of and delivered to the acting
holder of the Old Notes or deposited at such holder's account at DTC.
6. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing New Notes or Old Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered
holder of the Old Notes tendered, or if tendered Old Notes are registered in
the name of any person other than the person signing the Letter of Transmittal,
or if a transfer tax is imposed for any reason other than the exchange of Old
Notes pursuant to the Exchanged Offer, then the amount of any such transfer
taxes (whether imposed on the registered holder or any other person) will be
payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption therefrom is not submitted, the amount of those transfer
taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the Old Notes listed in the Letter of
Transmittal.
7. Waiver of Conditions. The Company reserves the absolute right to waive,
in whole or in part, any of the specified conditions to the Exchange Offer set
forth in the Prospectus.
8. Mutilated, Lost, Stolen or Destroyed Notes. Any holder whose Old Notes
have been mutilated, lost, stolen or destroyed should contact the Exchange
Agent at the address indicated above for further instructions.
9. Requests for Assistance or Additional Copies. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal may be directed to the Exchange Agent
at the address and telephone number set forth above.
10. Validity and Form. All questions as to the validity, form, eligibility
(including time of receipt), acceptance of tendered Old Notes and withdrawal of
tendered Old Notes will be determined by the Company in its sole discretion,
which determination will be final and binding. The Company reserves the
absolute right to reject any and all Old Notes not properly tendered or any Old
Notes the Company's acceptance of which would, in the opinion of counsel for
the Company, be unlawful. The Company also reserves the absolute right to waive
any irregularities or conditions of tender as to particular Old Notes either
before or after the Expiration Date, including the right to waive the
ineligibility of any holder who seeks to tender Old Notes in the Exchange
Offer. The Company's interpretation of the terms and conditions of the Exchange
Offer (including the instructions in this Letter of Transmittal) will be final
and binding on all parties.
10
<PAGE>
Unless waived, any defects or irregularities in connection with tenders of
Old Notes must be cured within such time as the Company shall determine. None
of the Company, the Exchange Agent or any other person shall be under any duty
to give notification of defects or irregularities with respect to tenders of
Old Notes, nor shall any of them incur any liability for failure to give such
notification. Tenders of Old Notes will not be deemed to have been made until
such irregularities have been cured or waived. Any Old Notes received by the
Exchange Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned without cost to
such holder by the Exchange Agent to the tendering holders of Old Notes, unless
otherwise provided in this Letter of Transmittal, as soon as practicable
following the Expiration Date.
11. Important Tax Information. Under U.S. federal income tax law, a holder
tendering Old Notes is required to provide the Exchange Agent with such
holder's correct taxpayer identification number ("TIN") on Substitute Form W-9
above. If such holder is an individual, the TIN is the holder's social security
number. The Certificate of Awaiting Taxpayer Identification Number should be
completed if the tendering holder has not been issued a TIN and has applied for
a number or intends to apply for a number in the near future. If the Exchange
Agent is not provided with the correct TIN, the holder may be subject to a $50
penalty imposed by the Internal Revenue Service. In addition, payments that are
made to such holder with respect to tendered Old Notes may be subject to backup
withholding.
Certain holders (including, among others, all domestic corporations and
certain foreign individuals and foreign entities) are not subject to these
backup withholding and reporting requirements. A holder who satisfies one or
more of the conditions set forth in Part 2 of the Substitute Form W-9 should
execute the certification following such Part 2. In order for a foreign holder
to qualify as an exempt recipient, that holder must submit to the Exchange
Agent a properly completed Internal Revenue Service Form W-9, signed under
penalties of perjury, attesting to that holder's exempt status. A copy of such
form is attached to this Letter of Transmittal.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any amounts otherwise payable to the holder. Backup withholding is not
an additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
To prevent backup withholding on payments that are made to a holder with
respect to Old Notes tendered for exchange, the holder is required to notify
the Exchange Agent of his or her correct TIN by completing the form in this
Letter of Transmittal certifying that the TIN provided on Substitute Form W-9
is correct (or that such holder is awaiting a TIN) and that (1) such holder is
exempt, (2) such holder has not been notified by the Internal Revenue Service
that he or she is subject to backup withholding as a result of failure to
report all interest or dividends or (3) the Internal Revenue Service has
notified such holder that he or she is no longer subject to backup withholding.
Each holder is required to give the Exchange Agent the social security
number or employer identification number of the record holder(s) of the Old
Notes. If Old Notes are in more than one name or are not in the name of the
actual holder, consult the instructions on Internal Revenue Service Form W-9,
which are enclosed with this Letter of Transmittal, for additional guidance on
which number to report.
If the tendering holder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future, write "Applied For"
in the space for the TIN on Substitute Form W-9, sign and date the form and the
Certificate of Awaiting Taxpayer Identification Number and return them to the
Exchange Agent. If such certificate is completed and the Exchange Agent is not
provided with the TIN within 60 days, the Exchange Agent will withhold 31% of
all payments made thereafter until a TIN is provided to the Exchange Agent.
IMPORTANT: THIS LETTER OF TRANSMITTAL (TOGETHER WITH OLD NOTES OR CONFIRMATION
OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
11
<PAGE>
TO BE COMPLETED BY ALL TENDERING SECURITY HOLDERS:
PAYOR'S NAME: ISLE OF CAPRI CASINOS, INC.
Part 1--PLEASE PROVIDE YOUR TIN
SUBSTITUTE ON THE LINE AT RIGHT AND CERTIFY Social security
Form W-9 BY SIGNING AND DATING BELOW number or Employer
Department of the Treasury identification number
Internal Revenue Service
Payor's Request ---------------------
for Taxpayer's ----------------------------------------------------------
Identification Part 2--CERTIFICATION--Under penalties of perjury, I
Number (TIN) certify that:
(1) The number shown on this form is my correct
taxpayer identification number (or I am waiting for
a number to be issued to me);
(2) I am not subject to backup withholding because: (a)
I am exempt from backup withholding; (b) I have not
been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as
a result of a failure to report all interest or
dividends or (c) the IRS has notified me that I am
no longer subject to backup withholding; and
(3) Any other information provided on this form is true
and correct.
Certification Instructions--You must cross out item (2)
above if you have been notified by the IRS that you are
subject to backup withholding because of underreporting
interest or dividends on your tax return and you have
not been notified by the IRS that you are no longer
subject to backup withholding.
----------------------------------------------------------
Part 3--
SIGNATURE __________________________________ Awaiting
TIN [_]
DATE _______________________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT
TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF
YOU CHECKED THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31% of all payments made to me
on account of the Exchange Notes shall be retained until I provide a
taxpayer identification number to the Exchange Agent and that, if I do not
provide my taxpayer identification number within 60 days, such retained
amounts shall be remitted to the Internal Revenue Service as backup
withholding and 31% of all reportable payments made to me thereafter will be
withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
SIGNATURE: ____________________________________________________________DATE:
12
<PAGE>
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8 3/4% Senior Subordinated Notes due 2009, Series A
(INCLUDING THOSE IN BOOK-ENTRY FORM)
OF
ISLE OF CAPRI CASINOS, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, and the related Letter of Transmittal (the "Letter of Transmittal") must
be used to accept the Exchange Offer (as defined below) of Isle of Capri
Casinos, Inc., a Delaware corporation (the "Company"), made pursuant to the
Prospectus, dated , 1999 (as it may be amended or supplemented from time
to time, the "Prospectus"), if (1) certificates for the Company's outstanding
8 3/4% Senior Subordinated Notes due 2009, Series A (the "Old Notes"), are not
immediately available, (2) the Letter of Transmittal and all documents
required by the Letter of Transmittal cannot be delivered to State Street Bank
and Trust Company (the "Exchange Agent") on or prior to 5:00 p.m., New York
City time, on the Expiration Date (as defined below) or (3) the procedures for
delivery by book-entry transfer cannot be completed on a timely basis. Such
form must be delivered by mail or hand delivery to the Exchange Agent as set
forth below. In addition, in order to utilize the guaranteed delivery
procedures to tender the Old Notes pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal, any other required
documents and tendered Old Notes in proper form for transfer (or confirmation
of a book-entry transfer of such Old Notes into the Exchange Agent's account
at The Depository Trust Company) must also be received by the Exchange Agent
prior to 5:00 p.m., New York City time, within four business days after the
Expiration Date. Capitalized terms not otherwise defined in this Notice of
Guaranteed Delivery are defined in the Prospectus.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
1999, UNLESS EXTENDED (THE "EXPIRATION DATE").
The Exchange Agent for the Exchange Offer is:
State Street Bank and Trust Company
By Registered or Certified Mail: By Hand or Overnight Courier:
State Street Bank and Trust Company State Street Bank and Trust Company
Corporate Trust Department Corporate Trust Window, 5th Floor
P.O. Box 778 2 Avenue de Lafayette
Boston, Massachusetts 02102-0778 Boston, Massachusetts 02111-1724
To Confirm by Telephone or for Information:
(617) 662-1525
Attn: Mackenzie Elijah
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions to the Letter
of Transmittal, such signature guarantee must appear in the applicable space
provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and subject
to the conditions set forth in the Prospectus and the Letter of Transmittal
(which together constitute the "Exchange Offer"), receipt of which are hereby
acknowledged, the aggregate principal amount of Old Notes set forth below
pursuant to the guaranteed delivery procedure described under the heading "The
Exchange Offer--Guaranteed Delivery Procedures" in the Prospectus and
Instruction 2 of the Letter of Transmittal.
Name(s) of Registered Holder(s): ______________________________________________
(Please Print or Type)
Principal Amount of Old Notes Certificate No(s). (if available):
Tendered:*
-------------------------------------
$ ___________________________________
-------------------------------------
$ ___________________________________
-------------------------------------
$ ___________________________________
* Must be in denominations of principal amount of $1,000 and any integral
multiple thereof.
If Old Notes will be delivered by book-entity transfer to The Depository
Trust Company ("DTC"), provide the DTC account number.
DTC Account Number:
All authority conferred or agreed to be conferred in this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned.
Every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, executors, administrators, personal
representatives, trustees in bankruptcy, legal representatives, successors and
assigns of the undersigned.
PLEASE SIGN HERE
Must be signed by the holder(s) of Old Notes as their name(s) appear(s) on
certificates for Old Notes or on a security position listing, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery.
- -------------------------------------------------- -------------------------
- -------------------------------------------------- -------------------------
Signature(s) of Holder(s) or Authorized Signatory Date
Area Code and Telephone Number:
If signature is by attorney-in-fact, trustee, executor, administrator,
guardian, officer or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title below.
Please print name(s) and address(es)
Name(s) of Holder(s) ------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Title/Capacity: ------------------------------------------------------
Address(es): ------------------------------------------------------
2
<PAGE>
GUARANTEE
(Not to be Used for Signature Guarantee)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., a commercial bank
or trust company having an office or a correspondent in the United States or
an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, hereby guarantees that the
undersigned will deliver to the Exchange Agent the certificate(s) representing
the Old Notes being tendered by this Notice of Guaranteed Delivery in proper
form for transfer (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at the book-entry transfer facility of DTC)
with a properly completed and duly executed Letter of Transmittal and any
other required documents, all within four (4) business days after the
Expiration Date.
Name of Firm ________________________
-------------------------------------
(Authorized Signature)
Address _____________________________
- ------------------------------------- Name: _______________________________
Please Print or Type
Zip Code
Title _______________________________
Telephone Number __________________
Dated _______________________________
The institution that completes this form must communicate the guarantee to
the Exchange Agent by the Expiration Date and must deliver the certificates
representing any Old Notes (or a confirmation of book-entry transfer of such
Old Notes into the Exchange Agent's account at DTC), the Letter of Transmittal
and any other required documents to the Exchange Agent within the time period
shown in this Notice of Guaranteed Delivery. Failure to do so could result in
a financial loss to such institution.
NOTE: DO NOT SEND CERTIFICATES OF OLD NOTES WITH THIS FORM. CERTIFICATES FOR
OLD NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
