Exhibit 3(3)
CERTIFICATE OF INCORPORATION
OF
PROMUS HOTELS, INC.
FIRST: The name of the Corporation is:
PROMUS HOTELS, INC.
SECOND: The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle 19801. The name of its registered agent at
such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is one thousand (1,000) shares of common stock ("Common
Stock"); and the par value of each share of Common Stock shall be ten cents
($0.10).
FIFTH: The name and mailing address of the incorporator is:
Ilona F. Bush
LATHAM & WATKINS
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
SIXTH: The business and affairs of the Corporation shall be managed by the
board of directors, and the directors need not be elected by ballot unless the
bylaws of the Corporation so provide.
SEVENTH: In furtherance and not in limitation of the powers conferred by
the State of Delaware, the board of directors is expressly authorized, without
stockholder action, to adopt, amend or repeal the bylaws of the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: No director of this Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 a knowing
violation of the law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
TENTH: Notwithstanding any other provision of this Certificate of
Incorporation to the contrary, outstanding shares of Common Stock or any
other class or series of stock of the Corporation shall always be subject to
redemption by the Corporation, by action of the board of directors, if, in
the judgment of the board of directors, any holder of such stock is
determined by any gaming regulatory agency to be unsuitable, has an
application for a license or permit rejected, or has a previously issued
license or permit rescinded, suspended, revoked or not renewed, as the case
may be, whether or not any of the foregoing is final and nonappealable, or if
such action otherwise should be taken, pursuant to Section 151(b) of the GCL
or any other applicable provision of law, to the extent necessary to avoid
any regulatory sanctions against, or to prevent the loss of or secure the
reinstatement of any license, franchise or entitlement from any governmental
agency held by the Corporation, any Affiliate of the Corporation or any
entity in which the Corporation or such Affiliate is an owner, which license,
franchise or entitlement is (i) conditioned upon some or all of the holders
of the Corporation's stock of any class or series possessing prescribed
qualifications, or (ii) needed to allow the conduct of any portion of the
business of the Corporation or any such Affiliate or other entity. The terms
and conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant to this
Article TENTH shall be equal to the Fair Market Value of such shares (excluding
any dividends thereon not entitled to be received pursuant to paragraph (e) of
this Article TENTH) or such other redemption price as required by any applicable
law, regulation or rule;
(b) the redemption price of such shares may be paid in cash, Redemption
Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders are to be
redeemed, the shares to be redeemed shall be selected in such manner as shall be
determined by the board of directors, which may include selection first of the
most recently purchased shares thereof, selection by lot or selection in any
other manner determined by the board of directors;
(d) at least 30 days' written notice of the Redemption Date shall be given
to the record holders of the shares selected to be redeemed (unless waived in
writing by any such holder), provided that the Redemption Date may be the date
on which written notice shall be given to record holders if the cash or
Redemption Securities necessary to effect the redemption shall have been
deposited in trust for the benefit of such record holders and
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subject to immediate withdrawal by them upon surrender of the stock certificates
for their shares to be redeemed;
(e) from and after the Redemption Date or such earlier date as mandated by
any applicable law, regulation or rule, any and all rights of whatever nature,
which may be held by the owners of shares selected for redemption (including
without limitation, any rights to vote or participate in dividends declared on
stock of the same class or series as such shares), shall cease and terminate and
they shall thenceforth be entitled only to receive the cash or Redemption
Securities payable upon redemption; and
(f) such other terms and conditions as the board of directors shall
determine.
For purposes of this Article TENTH:
(i) "Disqualified Holder" shall mean any holder of shares of stock
of the Corporation of any class (or classes) or series who, either individually
or when taken together with any other holders of shares of stock of the
Corporation of any class (or classes) or series, in the judgment of the board of
directors, is determined by any gaming regulatory agency to be unsuitable, or
has an application for a license or permit rejected, or has a previously issued
license or permit rescinded, suspended, revoked or not renewed, as the case may
be, whether or not any of the foregoing is final and nonappealable, or whose
holding of such stock, either individually or when taken together with the
holding of shares of stock of the Corporation of any class (or classes) or
series by any other holders, may result, in the judgment of the board of
directors, in any regulatory sanctions against, or the loss of or the failure to
secure the reinstatement of any license, franchise, or entitlement from any
governmental agency held by the Corporation, any Affiliate of the Corporation or
any entity in which the Corporation or such Affiliate is an owner.
(ii) "Fair Market Value" of a share of the Corporation's stock of
any class or series shall mean the average Closing Price for such share for each
of the 45 most recent days of which shares of stock of such class or series
shall have been traded preceding the day on which notice of redemption shall be
given pursuant to paragraph (d) of this Article TENTH; PROVIDED, HOWEVER, that
if shares of stock of such class or series are not traded on any securities
exchange or in the over-the-counter market, "Fair Market Value" shall be
determined by the board of directors in good faith; and PROVIDED FURTHER,
HOWEVER, that "Fair Market Value" as to any stockholder who purchased any stock
of the class (or classes) or series subject to redemption within 120 days of a
Redemption Date need not (unless otherwise determined by the board of directors)
exceed the purchase price paid by him for any stock of such class (or classes)
or series of the Corporation. "Closing Price" on any day means the reported
closing sales price or, in case no such sale takes place, the average of the
reported closing bid and asked prices on the Composite Tape for the New York
Stock Exchange Listed Stocks, or, if such stock is not listed on such Exchange,
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on which such
stock is listed, or, if such stock is not listed
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on any such exchange, the highest closing sales price or bid quotation for such
stock on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such prices or quotations
are available, the fair market value on the day in question as determined by the
board of directors in good faith.
(iii) "Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the Corporation pursuant
to this Article TENTH.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any Subsidiary or any other corporation, or any
combination thereof, having such terms and conditions as shall be approved by
the board of directors and which, together with any cash to be paid as part of
the redemption price, in the opinion of any nationally recognized investment
banking firm selected by the board of directors (which may be a firm which
provides other investment banking, brokerage or other services to the
Corporation), has a value at the time notice of redemption is given pursuant to
paragraph (d) of this Article TENTH, at least equal to the Fair Market Value of
the shares to be redeemed pursuant to this Article TENTH (assuming, in the case
of Redemption Securities to be publicly traded, such Redemption Securities were
fully distributed and subject only to normal trading activity).
(v) "Subsidiary" shall mean any corporation more than 50% of whose
outstanding stock entitled to vote generally in the election of directors is
owned by the Corporation, by one or more Subsidiaries or by the Corporation and
one or more Subsidiaries.
(vi) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 under the Exchange Act as in effect on the date hereof (the term
"registrant" in said Rule 12b-2 meaning in this case the Corporation).
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate, herein declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this tenth day of May, 1995.
/s/ Ilona F. Bush
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Ilona F. Bush
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