EXHIBIT 3.15
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRUMP INDIANA, INC.
TO BE RENAMED HEREBY
THE MAJESTIC STAR CASINO II, INC.
* * * * * * * *
This Second Amended and Restated Certificate of Incorporation
("Certificate") of Trump Indiana, Inc., a corporation organized and existing
under the laws of the State of Delaware, has been duly adopted in accordance
Section 242 of the General Corporation Law of Delaware, as amended (hereinafter
referred to as the "Act").
FIRST: The name of the Corporation is "The Majestic Star Casino II,
Inc."
SECOND: The original date of incorporation of the Corporation was
December 10, 1992.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Act.
FOURTH: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, Delaware, 19801; and the
name of the registered agent of the Corporation at such address is CT
Corporation System.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: CAPITAL STOCK. (a) Authorized Capital Stock. The total number
of shares of stock which the Corporation shall have authority to issue is One
Thousand Five Hundred (1,500), all of which are without par value. All such
shares are of one class and are shares of Common Stock.
(b) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of the Common Stock are as
follows:
(1) (a) Voting. Except as otherwise expressly required by law
or provided in this Certificate of Incorporation, the holders of any
outstanding shares of Common Stock shall vote together as a single
class on all matters with respect to which stockholders are entitled to
vote under applicable law, this Certificate of Incorporation or the
Bylaws of the Corporation, as amended from time to time, or upon which
a vote of stockholders is otherwise called for by the Corporation. At
each annual or special meeting of stockholders, each holder of record
of shares of Common Stock on the record date for such meeting shall be
entitled to cast one vote in person or by proxy for each share of the
Common Stock standing in such holder's name on the stock transfer
records of the Corporation on such record date.
(b) Non-cumulative. The holders of shares of Common
Stock shall not have cumulative voting rights.
(2) Dividends. Subject to any other provisions of this
Certificate of Incorporation, holders of shares of Common Stock shall
be entitled to receive such dividends and other distributions in cash,
stock or property of the Corporation when, as and if declared thereon
by the Board of Directors from time to time out of assets or funds of
the Corporation legally available therefor.
(3) Liquidation. In the event of any liquidation, dissolution
or winding up (either voluntary or involuntary) of the Corporation, the
holders of shares of Common Stock shall be entitled to share equally,
on a share for share basis, the assets and funds of the Corporation
available for distribution, after payments to creditors and to the
holders of any preferred stock of the Corporation that may at the time
be outstanding. Neither the consolidation nor the merger of the
Corporation with or into any other person, nor the sale, transfer or
lease of all or substantially all of the assets of the Corporation
shall itself be deemed to be a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning of this Section 3.
(4) Preemptive Rights. No holder of shares of Common Stock
shall be entitled to preemptive or subscription rights.
(c) Purchase and Sale of Shares. Subject to the requirements of
applicable law, the Corporation shall have the power to issue and sell all or
any part of any shares of any class of stock herein or hereafter authorized to
such persons, and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not greater consideration
could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of
applicable law, the Corporation shall have the power to purchase any shares of
Common Stock or any class of stock hereafter authorized from such persons, and
for such consideration, as the Board of Directors shall from time to time, in
its discretion, determine, whether or not less consideration could be paid upon
the purchase of the same number of shares of another class, and as otherwise
permitted by law.
SEVENTH: No Person may become the beneficial owner of five percent (5%)
or more of any class or series of the Corporation's issued and outstanding
capital stock unless such person agrees in writing to: (i) provide to the
Indiana Gaming Commission (the "IGC") information regarding such person,
including without limitation thereto, information regarding other gaming-related
activities of such person and financial statements, in such form, and with such
updates, as may be required by the IGC; (ii) respond to written or oral
questions that may be propounded by the IGC; and (iii) consent to the
performance of any background investigation that may be required by the IGC,
including without limitation thereto, and investigation of any criminal record
of such person.
The Corporation shall not issue any voting securities or other voting
interests except in accordance with the provisions of the Indiana Riverboat
Gambling Act and the rules promulgated thereunder. The issuance of any voting
securities or other voting interests in
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violation thereof shall be void and such voting securities or other voting
interests shall be deemed not to be issued and outstanding until one (1) of the
following occurs:
1. The Corporation shall cease to be subject to the jurisdiction of the
IGC.
2. The IGC shall, by affirmative action, validate said issuance or
waive any defect in issuance.
No voting securities or other voting interests 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 Indiana Riverboat Gambling Act and rules promulgated thereunder. Any
transfer in violation thereof shall be void until one (1) of the following
occurs:
1. The Corporation shall cease to be subject to the jurisdiction of the
IGC.
2. The IGC shall, by affirmative action, validate said transfer or
waive any defect in said transfer.
If the IGC at any time determines that a holder of voting securities or
other voting interests of the Corporation shall be denied the application for
transfer, then the issuer of such voting securities or other voting interests
may, within thirty (30) days after the denial, purchase such voting securities
or other voting interests of such denied applicant at the lesser of:
1. the market price of the ownership interest; or
2. the price at which the applicant purchased the ownership interest;
unless such voting securities or other voting interests are transferred to a
suitable person (as determined by the IGC) within thirty (30) days after the
denial of the application for transfer of ownership.
Until such voting securities or other voting interests are owned by
persons found by the IGC to be suitable to own them, the following restrictions
must be followed:
1. The Corporation shall not be required or permitted to pay any
dividend or interest with regard to the voting securities or other voting
interests.
2. 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.
3. The Corporation shall not pay any remuneration in any form to the
holder of the voting securities or other voting interests as provided in this
Article SEVENTH.
EIGHTH: LIABILITY; INDEMNIFICATION. (a) A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or
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limitation therefor is not permitted under the Act as the same exists or may
hereafter be amended. If the Act is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
authorized by the Act, as so amended. Any repeal or modification of this
paragraph shall not adversely affect any right or protection of a director of
the Corporation existing hereunder with respect to any act or omission occurring
prior to such repeal or modification.
(b) Any person who was or is made a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative ("Proceeding") by
reason of the fact that such person or person for whom such person is a legal
representative, is or was a director or officer of the Corporation, or is or was
a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, nonprofit entity or other enterprise,
including service with respect to employee benefit plans ("Covered Person"),
whether the basis of such Proceeding is alleged action in an official capacity
as a director, officer, employee or agent, or in any other capacity while
serving as a director, officer, employee or agent shall be indemnified and held
harmless by the Corporation to the fullest extent authorized or permitted by
applicable law.
(c) The rights conferred on any Covered Person by this Article EIGHTH
shall not be exclusive of any other rights which any Covered Person may have or
hereafter acquire under law, this Certificate of Incorporation, the Bylaws of
the Corporation, an agreement, vote of stockholders or disinterested directors,
or otherwise.
(d) Any repeal or amendment of the Article EIGHTH by the stockholders
of the Corporation or by changes in law, or the adoption of any other provision
of this Certificate of Incorporation inconsistent with this Article EIGHTH,
will, unless otherwise required by law, by prospective only (except to the
extent such amendment or change in law permits the Corporation to provide
broader indemnification rights on a retroactive basis than permitted prior
thereto), and will not in any way diminish or adversely affect any right or
protection existing at the time of such repeal or amendment or adoption of such
inconsistent provision in respect of any act or omission occurring prior to such
repeal or amendment or adoption of such inconsistent provision.
(e) This Article EIGHTH shall not limit the right of the Corporation,
to the extent and in the manner authorized or permitted by law, to indemnify and
to advance expenses to persons other than Covered Persons.
NINTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the Act) within or without the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors or in the Bylaws of the Corporation.
TENTH: Except as otherwise set forth in this Certificate, the Board is
expressly authorized to make, alter or repeal the Bylaws of the Corporation;
provided, however, that the stockholders may adopt, amend or repeal any bylaw
adopted by the Board, and no amendment or
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supplement to the Bylaws adopted by the Board shall vary or conflict with any
amendment or supplement adopted by the stockholders.
ELEVENTH: Except as otherwise provided in this Certificate, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate, in any manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted, subject
to this reservation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
this _____ day of December, 2005.
THE MAJESTIC STAR CASINO II, INC.
By:
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