RESTATED CERTIFICATE OF INCORPORATION
OF
PINNACLE ENTERTAINMENT, INC.
a Delaware corporation
Pinnacle Entertainment, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The present name of this corporation is Pinnacle Entertainment, Inc.
(the "Company"). The Company was originally incorporated under the name
Hollywood Park Realty Enterprises, Inc., and its original Certificate of
Incorporation was filed with the Delaware Secretary of State on October 26,
1981.
2. The Restated Certificate of Incorporation has been duly adopted in
accordance with Section 245 of the Delaware General Corporation Law by the Board
of Directors of the Company without a vote of the stockholders of the Company.
3. The Restated Certificate of Incorporation of the Company attached hereto
as Exhibit A only restates and integrates, but does not further amend, all of
the provisions of the Company's Certificate of Incorporation as theretofore
amended or supplemented and currently in effect, and there is no discrepancy
between the provisions of the Certificate of Incorporation of the Company
currently in effect and the provisions of the Restated Certificate of
Incorporation.
4. The Company's Certificate of Incorporation is hereby restated in its
entirety to read as set forth on Exhibit A attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, the Company has caused this Restated Certificate of
Incorporation to be duly executed by the undersigned officer of the Company this
12th day of August, 2002.
PINNACLE ENTERTAINMENT, INC.
By: /s/ Bruce C. Hinckley
------------------------
Bruce C. Hinckley,
Senior Vice President
and Chief Financial
Officer
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
OF
PINNACLE ENTERTAINMENT, INC.
ARTICLE I
The name of the corporation is: Pinnacle Entertainment, Inc.
ARTICLE II
The address of its registered office in the State of Delaware is 30 Old
Rudnick Lane, in the City of Dover, County of Kent. The name of its registered
agent is CorpAmerica, Inc.
ARTICLE III
The nature of the business to be conducted or promoted is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
The amount of the total authorized capital stock of the corporation is
40,250,000 shares which are divided into two classes as follows:
250,000 shares of Preferred Stock having a par value of $1.00 per
share; and
40,000,000 shares of Common Stock having a par value of $0.10 per
share.
The designations, voting powers, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock are as follows:
A. Preferred Stock.
The Board of Directors is expressly authorized, from time to time,
(1) to fix the number of shares of one or more series of Preferred Stock;
(2) to determine the designation of any such series; (3) to determine or
alter, without limitation or restriction, the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock; and (4) within the limits or restrictions stated
in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, to increase or
decrease (but not below the number of shares then outstanding) the number
of shares of any such series subsequent to the issue of shares of that
series.
B. Common Stock.
(i) Subject to the preferential rights of the Preferred Stock, the
holders of the Common Stock shall be entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by
the Board of Directors.
(ii) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, after
distribution in full of the preferential amount to be distributed to the
holders of shares of the Preferred Stock, holders of the Common Stock shall
be entitled to receive all the remaining assets of the corporation of
whatever kind available for distribution to stockholders, ratably in
proportion to the number of shares of Common Stock held by them
respectively. A consolidation, merger or reorganization of the corporation
with any other corporation or corporations, or a sale of all or
substantially all of the assets of the corporation, shall not be considered
a dissolution, liquidation or winding up of the corporation within the
meaning of these provisions.
(iii) Except as may be otherwise required by law, each share of Common
Stock shall entitle the holder to one vote in respect of each matter voted
by the stockholders.
ARTICLE V
Any and all right, title, interest and claim in or to any dividends
declared by the corporation, whether in cash, stock, or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and is deemed to be
extinguished and abandoned; and such unclaimed dividends in the possession of
the corporation, its transfer agents or other agents or depositories shall at
such time become the absolute property of the corporation, free and clear of any
and all claims of any persons whatsoever.
ARTICLE VI
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
by-laws of the corporation.
ARTICLE VII
Whenever a compromise or arrangement is proposed between the corporation
and its creditors or any class of them and/or between the corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made,
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be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the corporation, as the case may be,
and also on the corporation.
ARTICLE VIII
The corporation shall indemnify its officers and directors to the full
extent permitted by the Delaware General Corporation Law.
ARTICLE IX
Elections of directors need not be by written ballot unless the by-laws of
the corporation so provide.
ARTICLE X
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XI
[ARTICLE XI has been intentionally omitted.]
ARTICLE XII
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director for corporate actions as a director; provided, however,
that this Article XII shall not eliminate or limit the liability of a director
to the extent provided by applicable law (1) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the Delaware General Corporation Law,
or (4) for any transaction from which the director derived an improper personal
benefit. No amendment to repeal this Article XII 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.
ARTICLE XIII
A. Definitions. For purposes of this Article XIII, the following terms
shall have the meanings specified below:
1. "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. "Affiliated Companies" shall mean those companies directly or
indirectly affiliated or under common Ownership or Control with the corporation,
including, without limitation, subsidiaries, holding companies and intermediary
companies (as those and similar terms are defined in the Gaming Laws of the
applicable Gaming Jurisdictions) that are registered or licensed under
applicable Gaming Laws.
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3. "Gaming" or "Gaming Activities" shall mean the conduct of gaming and
gambling activities, or the use of gaming devices, equipment and supplies in the
operation of a casino, card club or other enterprise, including, without
limitation, slot machines, gaming tables, cards, dice, gaming chips, player
tracking systems, cashless wagering systems and related and associated equipment
and supplies.
4. "Gaming Authorities" shall mean all international, foreign, federal,
state and local regulatory and licensing bodies and agencies with authority over
Gaming within any Gaming Jurisdiction.
5. "Gaming Jurisdictions" shall mean all jurisdictions, domestic and
foreign, and their political subdivisions, in which Gaming Activities are
lawfully conducted.
6. "Gaming Laws" shall mean all laws, statutes and ordinances pursuant
to which any Gaming Authority possesses regulatory and licensing authority over
Gaming within any Gaming Jurisdiction, and all rules and regulations promulgated
by such Gaming Authority thereunder.
7. "Gaming Licenses" shall mean all licenses, permits, approvals,
authorizations, registrations, findings of suitability, franchises and
entitlements issued by a Gaming Authority necessary for or relating to the
conduct of Gaming Activities.
8. "Ownership or Control" (and derivatives thereof) shall mean (i)
ownership of record, (ii) "beneficial ownership" as defined in Rule 13d-3 or
Rule 16a-1(a)(2) promulgated by the SEC under the Exchange Act, (iii) the power
to direct and manage, by agreement, contract, agency or other manner, the voting
or management rights or disposition of securities of the corporation, and/or
(iv) definitions of ownership or control under applicable Gaming Laws.
9. "Person" shall mean an individual, partnership, corporation, limited
liability company, trust or any other entity.
10. "Redemption Date" shall mean the date by which the securities Owned
or Controlled by an Unsuitable Person are to be redeemed by the corporation.
11. "Redemption Notice" shall mean that notice of redemption served by
the corporation on an Unsuitable Person if a Gaming Authority requires the
corporation, or the corporation deems it necessary or advisable, to redeem such
Unsuitable Person's securities. Each Redemption Notice shall set forth (i) the
Redemption Date; (ii) the number of shares of securities to be redeemed; (iii)
the Redemption Price and the manner of payment therefor; (iv) the place where
certificates for such shares shall be surrendered for payment; and (v) any other
requirements of surrender of the certificates, including how they are to be
endorsed, if at all.
12. "Redemption Price" shall mean the per share price for the
redemption of any securities to be redeemed pursuant to this Article XIII, which
shall be that price (if any) required to be paid by the Gaming Authority making
the finding of unsuitability, or if such Gaming Authority does not require a
certain price per share to be paid, that sum deemed reasonable by the
corporation (which may include, in the corporation's discretion,
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the original purchase price per share of the securities); provided, however, the
Redemption Price, unless the Gaming Authority requires otherwise, shall in no
event exceed (i) the closing sales price of the securities on the national
securities exchange on which such shares are then listed on the date the notice
of redemption is delivered to the Unsuitable Person by the corporation, or
(ii) if such shares are not then listed for trading on any national securities
exchange, then the closing sales price of such shares as quoted in the NASDAQ
National Market System, or (iii) if the shares are not then so quoted, then the
mean between the representative bid and the ask price as quoted by NASDAQ or
another generally recognized reporting system. The Redemption Price may be paid
in cash, by promissory note, or both, as required by the applicable Gaming
Authority and, if not so required, as the corporation elects.
13. "Unsuitable Person" shall mean a Person who Owns or Controls any
securities of the corporation or any securities of or interest in any Affiliated
Company (i) that is determined by a Gaming Authority to be unsuitable to Own or
Control such securities or unsuitable to be connected with a Person engaged in
Gaming Activities in that Gaming Jurisdiction, or (ii) who causes the
corporation or any Affiliated Company to lose or to be threatened with the loss
of, or who, in the sole discretion of the Board of Directors of the corporation,
is deemed likely to jeopardize the corporation's right to the use of or
entitlement to, any Gaming License.
B. Compliance with Gaming Laws. The corporation, all Persons Owning or
Controlling securities of the corporation and any Affiliated Companies, and each
director and officer of the corporation and any Affiliated Companies shall
comply with all requirements of the Gaming Laws in each Gaming Jurisdiction in
which the corporation or any Affiliated Companies conduct Gaming Activities. All
securities of the corporation shall be held subject to the requirements of such
Gaming Laws, including any requirement that (i) the holder file applications for
Gaming Licenses with, or provide information to, applicable Gaming Authorities,
or (ii) that any transfer of such securities may be subject to prior approval by
Gaming Authorities, and any transfer of securities of the corporation in
violation of any such approval requirement shall not be permitted and the
purported transfer shall be void ab initio.
C. Finding of Unsuitability.
1. The securities of the corporation Owned or Controlled by an
Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by
the corporation, out of funds legally available therefor, by appropriate action
of the Board of Directors, to the extent required by the Gaming Authority making
the determination of unsuitability or to the extent deemed necessary or
advisable by the corporation. If a Gaming Authority requires the corporation, or
the corporation deems it necessary or advisable, to redeem such securities, the
corporation shall serve a Redemption Notice on the Unsuitable Person or its
Affiliate and shall purchase the securities on the Redemption Date and for the
Redemption Price set forth in the Redemption Notice. From and after the
Redemption Date, such securities shall no longer be deemed to be outstanding and
all rights of the Unsuitable Person or any Affiliate of the Unsuitable Person
therein, other than the right to receive the Redemption Price, shall cease. The
Unsuitable Person shall surrender the certificates for any securities to be
redeemed in accordance with the requirements of the Redemption
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Notice. Notwithstanding the foregoing, so long as the corporation and Hollywood
Park Operating Company are a paired stock real estate investment trust and
operating company, the corporation may, in its sole discretion, convert any
securities that are redeemable pursuant to this Section (C)(1) into shares of
Excess Stock effective upon written notice to the Unsuitable Person or its
Affiliate, and such shares of Excess Stock shall be transferred to a Trust for
sale to a Permitted Transferee (as such terms are defined in Article IV) in
accordance with Sections (D)(4) through (9) of Article IV.
2. Commencing on the date that a Gaming Authority serves notice of a
determination of unsuitability or the loss or threatened loss of a Gaming
License upon the corporation, and until the securities Owned or Controlled by
the Unsuitable Person or the Affiliate of an Unsuitable Person are Owned or
Controlled by Persons found by such Gaming Authority to be suitable to own them,
it shall be unlawful for the Unsuitable Person or any Affiliate of an Unsuitable
Person (i) to receive any dividend, payment, distribution or interest with
regard to the securities; (ii) to exercise, directly or indirectly or through
any proxy, trustee, or nominee, any voting or other right conferred by such
securities, and such securities shall not for any purposes be included in the
securities of the corporation entitled to vote, or (iii) to receive any
remuneration in any form from the corporation or an Affiliated Company for
services rendered or otherwise.
D. Issuance and Transfer of Securities. The corporation shall not issue or
transfer any securities or any interest, claim or charge thereon or thereto
except in accordance with applicable Gaming Laws. The issuance or transfer of
any securities in violation thereof shall be ineffective until (i) the
corporation shall cease to be subject to the jurisdiction of the applicable
Gaming Authorities, or (ii) the applicable Gaming Authorities shall, by
affirmative action, validate said issuance or transfer or waive any defect in
said issuance or transfer.
E. Indenture Restrictions. The corporation shall cause to be placed in
every indenture or other operative document relating to publicly traded
securities (other than capital stock) of the corporation a provision requiring
that any Person or Affiliate of a Person who holds the indebtedness represented
by that indenture and is found to be unsuitable to hold such interest shall have
the interest redeemed or shall dispose of the interest in the corporation in the
manner set forth in the indenture or other document.
F. Notices. All notices given by the corporation pursuant to this
Article XIII, including Redemption Notices, shall be in writing and shall be
deemed given when delivered by personal service or telegram, facsimile,
overnight courier or first class mail, postage prepaid, to the Person's address
as shown on the corporation's books and records.
G. Indemnification. Any Unsuitable Person and any Affiliate of an
Unsuitable Person shall indemnify the corporation and its Affiliated Companies
for any and all costs, including attorneys' fees, incurred by the corporation
and its Affiliated Companies as a result of such Unsuitable Person's or
Affiliate's continuing Ownership or Control or failure to promptly divest itself
of any securities in the corporation.
H. Fiduciary Obligations; Contractual Arrangements; Etc. Nothing contained
in this Article XIII shall be construed (i) to relieve any Unsuitable Person (or
Affiliate of such
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Person) from any fiduciary obligation imposed by law, (ii) to prohibit or affect
any contractual arrangement which the corporation may make from time to time
with any holder of securities of the corporation to purchase all or any part of
shares of capital stock or other securities held by them, or (iii) to be in
derogation of any action, past or future, which has been or may be taken by the
Board of Directors or any holder of securities with respect to the subject
matter of this Article XIII.
I. Injunctive Relief. The corporation is entitled to injunctive relief in
any court of competent jurisdiction to enforce the provisions of this
Article XIII and each holder of the securities of the corporation shall be
deemed to have acknowledged, by acquiring the securities of the corporation,
that the failure to comply with this Article XIII will expose the corporation to
irreparable injury for which there is no adequate remedy at law and that the
corporation is entitled to injunctive relief to enforce the provisions of this
Article XIII.
J. Legend. The restrictions set forth in this Article XIII shall be noted
conspicuously on any certificate representing securities of the corporation in
accordance with the requirements of the Delaware General Corporation Law and
applicable Gaming Laws.
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