Exhibit 3.12
CERTIFICATE OF INCORPORATION
OF
TRUMP ATLANTIC CITY FUNDING III, INC.
* * * * * * * *
ARTICLE I
The name of the corporation (the "Corporation") is: TRUMP ATLANTIC
CITY FUNDING III, INC.
ARTICLE II
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust 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, $.01 par value per share
(the "Common Stock").
ARTICLE V
A. New Jersey Shareholder Qualification. The New Jersey 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 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. 5:12-105.
Notwithstanding anything herein to the contrary, 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 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 fails to dispose of his securities within 180 days following such
disqualification, (i) such securities shall be subject to
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redemption by the Corporation, as provided in Section B of this Article
V, 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 holder's continuing ownership or
failure to divest promptly.
B. Disqualified Holders. Notwithstanding any other provision of this
Certificate of Incorporation, but subject to the provisions of any resolution of
the Board of Directors creating any series of preferred stock or any other class
of stock which has a preference over Common Stock with regard to dividends or
upon liquidation, 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 the Board of Directors, pursuant to this Article V,
Section B as follows:
(1) the redemption price of the Capital Stock or debt securities to
be redeemed pursuant to this Article V, Section B 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;
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(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
(6) such other terms and conditions as the Board of Directors shall
determine.
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ARTICLE VI
The name and mailing address of the incorporator is as follows:
Henry S. Smokler
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
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
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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
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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
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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
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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.
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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. 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. "Commission" shall mean the New Jersey Casino Control Commission.
H. "Disqualified Holder" 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,
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or properties of the Corporation or any of its Subsidiaries, including,
without limitation, the 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.
I. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
J. "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 B, 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
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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.
K. "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.
L. "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.
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.
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IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinbefore named, for the purpose of forming a Corporation pursuant to the
General Corporation Law of the State of Delaware makes this Certificate of
Incorporation, hereby declaring and certifying that this is his act and deed and
the facts herein stated are true and, accordingly, has hereunto executed this
Certificate of Incorporation on this 18th day of November, 1997.
/s/ Henry S. Smokler
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Henry S. Smokler
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