Exhibit 3.1.2
CERTIFICATE OF INCORPORATION
OF
TRUMP CASINO FUNDING, INC.
* * * * * * * *
ARTICLE I
The name of the corporation (the "Corporation") is: TRUMP CASINO
FUNDING, INC.
ARTICLE II
The address of the registered office of the Corporation in the State
of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington,
County of New Castle. The name of the registered agent of the Corporation at
such address is the Corporation Service Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the Corporation 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 total number of shares of stock which the Corporation shall have
authority to issue is 1,000 shares of Common Stock, $0.01 par value per share
(the "Common Stock").
ARTICLE V
A. New Jersey Gaming Regulations. The New Jersey Casino Control
Commission (the "Casino Control Commission") shall have the prior right to
approve any and all transfers of the Corporation's securities, shares or other
interests in the Corporation and in any non-publicly traded holding company,
intermediary company or subsidiary thereof, as said terms are defined in the New
Jersey Casino Control Act, as amended or as may hereinafter be amended. The
Corporation shall have the absolute right to repurchase at market price or the
purchase price, whichever is the lesser, any security, share or other interest
in the Corporation in the event that the Casino Control Commission disapproves a
transfer in accordance with the provisions of the Casino Control Act, provided
that such repurchase price shall be payable only in cash. Every security, share
or other interest (other than publicly traded debt securities) in the
Corporation and issued by the Corporation shall bear, on both sides of the
certificate evidencing same, a statement of the foregoing restrictions and the
additional restrictions imposed by N.J.S.A. Section 5:12-105.
The provisions of the preceding paragraph shall not apply to publicly
traded debt securities of the Corporation. Such debt securities shall be held
subject to the condition that if any such holder is found disqualified by the
Casino Control Commission pursuant to the provisions of the Casino Control Act,
such holder shall (a) dispose of his or her interest in the Corporation; (b) not
receive any interest upon any such securities; and (c) not receive any
remuneration in any form from the casino licensee for services rendered or
otherwise. If any unsuitable or disqualified holder (a "Disqualified Holder")
fails to dispose of his securities within 180 days following such
disqualification, (i) such securities shall be subject to redemption by the
Corporation, as provided below, provided further that the redemption price of
such securities shall be payable only in cash and not in securities or any
combination thereof, and (ii) such unsuitable or disqualified holder shall
indemnify the Corporation for any and all direct or indirect costs, including
attorneys' fees, incurred by the Corporation as a result of such holders
continuing ownership or failure to divest promptly.
Outstanding shares of Capital Stock or debt securities held by a
Disqualified Holder shall be subject to redemption at any time by the
Corporation by action of its Board of Directors, as follows:
(1) the redemption price of the Capital Stock or debt securities to
be redeemed pursuant to this section shall be equal to the lesser of the Fair
Market Value of such Capital Stock or debt securities or the price at which such
Capital Stock or debt securities were purchased, or such other redemption price
as required by pertinent state or federal law pursuant to which the redemption
is required;
(2) the redemption price of such shares or debt securities shall be
paid in cash;
(3) if less than all the shares or debt securities held by
Disqualified Holders are to be redeemed, the shares or debt securities 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 or debt securities thereof, selection by lot, or selection in any other
manner determined by the Board of Directors;
(4) at least thirty (30) days' written notice of the Redemption Date
shall be given to the record holders of the shares or debt securities selected
to be redeemed (unless waived in writing by any such holder); provided, however,
that the Redemption Date shall be deemed to be the date on which written notice
shall be given to record holders if the cash necessary to effect the redemption
shall have been deposited in trust for the benefit of such record holders and
subject to immediate withdrawal by them upon surrender of the certificates for
their shares or debt securities to be redeemed;
(5) from and after the Redemption Date or such earlier date as
mandated by pertinent state or federal law, any and all rights of whatever
nature, which may be held by the Beneficial 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 payable upon redemption; and
such other terms and conditions as the Board of Directors shall
determine.
B. Indiana Gaming Regulation. No Person may become the Beneficial Owner
of five percent (5%) percent 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 "Gaming Commission")
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 Gaming Commission; (ii) respond to written or oral questions that may be
propounded by the Gaming Commission; and (iii) consent to the performance of any
background investigation that may be required by the Gaming Commission,
including without limitation thereto, an investigation of any criminal record of
such person.
The Corporation shall not issue five percent (5%) or greater of any
voting securities or other voting interests to a Person except in accordance
with the Riverboat Gambling Act and the rules promulgated thereunder. The
issuance of any voting securities or other voting interests in violation thereof
shall be void and such voting securities or other voting interests shall be
deemed not to be issued and outstanding, until (a) the Corporation shall cease
to be subject to the jurisdiction of the Gaming Commission, or (b) the Gaming
Commission 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 of five percent (5%) or greater
therein or thereto shall be transferred in any manner whatsoever except in
accordance with the Riverboat Gambling Act and the rules promulgated thereunder.
Any transfer in violation thereof shall be void until (a) the Corporation shall
cease to be subject to the jurisdiction of the Gaming Commission, or (b) the
Gaming Commission shall, by affirmative action, validate said transfer or waive
any defect in said transfer.
If the Gaming Commission 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 (a) the market price of the ownership interest, or (b) 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 Gaming Commission) 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 Gaming Commission to be suitable to own them, the following
restrictions shall apply:
(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 for in
this Article V.
ARTICLE VI
The name and mailing address of the incorporator is as follows:
David S. Danner
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the by-laws of the Corporation may be made, altered, amended or
repealed by the stockholders or by a majority of the entire Board of Directors.
ARTICLE VIII
Elections of directors need not be by written ballot.
ARTICLE IX
A. Indemnification. The Corporation shall indemnify to the fullest extent
permitted under and in accordance with the laws of the State of Delaware any
person who was or is 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 (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, incorporator, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, trustee,
employee or agent of or in any other similar capacity with another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, shall not, of itself, create a presumption that
the person had reasonable cause to believe that his conduct was unlawful.
B. Additional Indemnification. The Corporation shall indemnify to the
fullest extent permitted under and in accordance with the laws of the State of
Delaware any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
C. Payment of Expenses. Expenses (including attorneys' fees) incurred in
defending any civil, criminal, administrative or investigative action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article IX.
D. Nonexclusivity of Provision. The indemnification and other rights set
forth in this Article shall not be exclusive of any provisions with respect
thereto in the by-laws or any other contract or agreement between the
Corporation and any officer, director, employee or agent of the Corporation.
E. Effect of Repeal. Neither the amendment nor repeal of this Article IX,
section A, B, C or D, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with Article IX, section A, B, C or D, shall
eliminate or reduce the effect of this Article IX, section A, B, C or D, in
respect of any matter occurring before such amendment, repeal or adoption of an
inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses pursuant to this Article IX,
section A, B, C or D, if such provision had not been so amended or repealed or
if a provision inconsistent therewith had not been so adopted.
F. Limitation on Liability. No director or officer shall be personally
liable to the Corporation or any stockholder for monetary damages for breach of
fiduciary duty as a director or officer, except for any matter in respect of
which such director or officer (1) shall be liable under Section 174 of the
General Corporation Law of the State of Delaware or any amendment thereto or
successor provision thereto or (2) shall be liable by reason that, in addition
to any and all other requirements for liability, he:
(i) shall have breached his duty of loyalty to the
Corporation or its stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall
have acted in a manner involving intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after the date hereof to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
ARTICLE X
The Corporation elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE XI
For the purpose of this Certificate of Incorporation:
A. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the General Rules and Regulations
under the Exchange Act. The term "registrant" as used in said Rule 12b-2 shall
mean the Corporation.
B. "Beneficial Owner" shall mean any Person who, singly or together with
any of such Person's Affiliates or Associates, directly or indirectly, has
"beneficial ownership" of Capital Stock (as determined pursuant to Rule 13d-3 of
the Exchange Act).
C. "Board of Directors" shall mean the Board of Directors of the
Corporation.
D. "Capital Stock" shall mean any common stock, preferred stock, special
stock, or any other class or series of stock of the Corporation.
E. "Casino Control Act" shall mean the New Jersey Casino Control Act,
N.J.S.A. Sections 5:12-1 et seq.
F. "Closing Price" on any day shall mean the reported closing sales price
or, in case no such sale takes place, the average of the reported closing bid
and asked price on the composite tape for New York Stock Exchange-listed stocks,
or, if stock of the class or series in question is not quoted on such composite
tape on the New York Stock Exchange, or, if such stock is not listed on such
exchange, on the principal United States Securities Exchange registered under
the Exchange Act on which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing sales price or bid quotation for such
stock on the National Association of Securities Dealers, Inc., Automated
Quotation System (including the National Market Systems)
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.
G. "Disqualified Holder," for purposes of Article V, Section A, shall
mean any Beneficial Owner of shares of Capital Stock or debt securities of the
Corporation or any of its Subsidiaries found to be disqualified by any
governmental or quasi-governmental authority with applicable jurisdiction over
the business, affairs, securities, or properties of the Corporation or any of
its Subsidiaries, including, without limitation, the Casino Control Commission,
pursuant to the provisions of the Casino Control Act or other applicable
provision or whose holding of shares of Capital Stock or debt securities may
result or, when taken together with the holding of shares of Capital Stock or
debt securities by any other Beneficial Owner, may result, in the judgment of
the Board of Directors, in the inability to obtain, loss or non-reinstatement of
any license or franchise from any governmental agency sought or held by the
Corporation or any Subsidiary to conduct any portion of the business of the
Corporation or any Subsidiary, which license or franchise is conditioned upon
some or all of the holders of Capital Stock or debt securities meeting certain
criteria.
H. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
I. "Fair Market Value" (a) in the case of shares of Capital Stock shall
mean the average Closing Price for such Capital Stock for each of the forty-five
(45) most recent days during which shares of stock of such class or series shall
have been traded preceding the day on which notice of redemption shall have been
given pursuant to Section C, Paragraph (4) of Article V; provided, however, that
if shares of Capital 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 purchases any stock
subject to redemption within one hundred twenty (120) days prior to a Redemption
Date shall not (unless otherwise determined by the Board of Directors) exceed
the purchase price paid for such shares and (b) in the case of property other
than stock or other securities, shall mean the fair market value of such
property on the date in question as determined by the Board of Directors in good
faith.
J. "Person" shall mean any natural person, corporation, firm,
partnership, limited liability company, association, government, governmental
agency, or any other entity, whether acting in an individual, fiduciary, or any
other capacity.
K. "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 Article
V.
L. "Riverboat Gambling Act" shall mean the Indiana Riverboat Gambling
Act, Indiana Code Sections 4-33 et seq.
M. "Subsidiary" shall mean any company of which a majority of any class
of equity securities is beneficially owned by the Corporation and/or another
Subsidiary of the Corporation, or in the case of a partnership, in which the
Corporation or any subsidiary is a general partner.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation on this 24th day of April, 2002.
/s/ David S. Danner
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David S. Danner