EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMERICAN CASINO & ENTERTAINMENT PROPERTIES FINANCE CORP.
Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the
Certificate of Incorporation of the Corporation.
AMERICAN CASINO & ENTERTAINMENT PROPERTIES FINANCE CORP., a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "DGCL"), DOES HEREBY CERTIFY:
A. The name of the corporation is American Casino & Entertainment
Properties Finance Corp. (the "Corporation").
B. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on December 29, 2003.
C. Pursuant to Sections 242 and 245 of the DGCL, this Amended and Restated
Certificate of Incorporation of the Corporation has been proposed by the Board
of Directors (the "Board") and adopted by the sole stockholder of the
Corporation and further amends and restates in its entirety the Certificate of
Incorporation, as in effect, as follows:
1. Name. The name of the corporation is American Casino &
Entertainment Properties Finance Corp. (the "Corporation").
2. Address; Registered Agent. The address of the Corporation's
registered office is 2711 Centerville Road, Suite 400, City of Wilmington,
County of New Castle, Delaware 19808, and its registered agent at such address
is Corporation Service Company.
3. Nature of Business; Purposes. The nature of the business and
purposes to be conducted or promoted by the Corporation are to engage in, carry
on and conduct any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
4. Number of Shares. The total number of shares of stock which the
Corporation shall have authority to issue is one thousand (1,000) shares of
Common Stock, $.01 par value.
5. Name and Address of Incorporator. The name and address of the
incorporator are as follows:
Name Address
Daniel Goldberg Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020-1104
6. Election of Directors. Members of the Board of Directors may be
elected either by written ballot or by voice vote.
7. Adoption, Amendment and/or Repeal of Bylaws. In furtherance and
not in limitation of the powers conferred by the General Corporation Law of the
State of Delaware, the Board of Directors may from time to time make, alter or
repeal the bylaws of the Corporation; provided, however, that the Board of
Directors shall not make, alter or repeal any bylaw pertaining to the number of
stockholders or directors required to constitute a quorum at meetings of
stockholders or directors.
8. Compromise or Arrangement. Whenever a compromise or arrangement
is proposed between this Corporation and its creditors or any class of them
and/or between this 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 this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers appointed
for this 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 this 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 this
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 this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this 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, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
9. Section 203 Opt Out. The Corporation hereby elects not to be
governed by Section 203 of the General Corporation Law of the State of Delaware
as from time to time in effect or any successor provision thereto.
10. Books of Corporation. The books of the Corporation may be kept
(subject to any provision contained in the General Corporation Law of the State
of Delaware) outside the
State of Delaware at such place as may be designated from time to time by the
Board of Directors or the bylaws of the Corporation.
This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with Sections 242 and 245 of the DGCL. In lieu of a
meeting and vote thereat of the stockholders, the sole stockholder of the
Corporation adopted this Certificate of Incorporation by written consent
pursuant to Section 228 of the DGCL, and as such written consent was unanimous,
no notice was required to be given, and none was given, under Section 228 of the
DGCL.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation on this 13th day of January, 2004.
AMERICAN CASINO & ENTERTAINMENT
PROPERTIES FINANCE CORP.
By: /s/ Richard P. Brown
-------------------------------------
Name: Richard P. Brown
Title: President and Chief
Executive Officer