Exhibit 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PARK PLACE ENTERTAINMENT CORPORATION
The Corporation was incorporated under the name "Gaming Co., Inc." by
the filing of its original Certificate of Incorporation with the Secretary of
State of the State of Delaware on June 10, 1998. This Amended and Restated
Certificate of Incorporation of the Corporation, which both restates and
amends the provisions of the Corporation's Certificate of Incorporation (as
amended and restated, this "Certificate of Incorporation"), was duly adopted
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL") and by written consent
of the Corporation's sole stockholder in accordance with Section 228 of the
DGCL. The Certificate of Incorporation of the Corporation is hereby amended
and restated to read in its entirety as follows:
ARTICLE I.
The name of the corporation (which is hereinafter referred to as "the
Corporation") is Park Place Entertainment Corporation.
ARTICLE II.
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, State of Delaware 19805. The name of the Corporation's registered
agent is Corporation Service Company.
ARTICLE III.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV.
SECTION 4.1. CAPITAL STOCK.
The total number of shares of all classes of stock which the Corporation
shall have the authority to issue is Five Hundred Million (500,000,000)
shares consisting of Four Hundred Million (400,000,000) shares of common
stock, par value $.01 per share (the "Common Stock"), and One Hundred Million
(100,000,000) shares of preferred stock, par value $.01 per share (the
"Preferred Stock").
SECTION 4.2. COMMON STOCK.
The shares of authorized Common Stock of the Corporation shall be
identical in all
respects and shall have equal rights and privileges.
SECTION 4.3. PREFERRED STOCK.
The Board of Directors shall have authority to issue the shares of
Preferred Stock from time to time on such terms as it may determine, and to
divide the Preferred Stock into one or more series and in connection with the
creation of any such series to fix by the resolution or resolutions providing
for the issue of shares thereof the voting powers, full or limited, or no
voting powers, the designations, powers and relative, participating,
optional, or other special rights of such series, and qualifications,
limitations, or restrictions thereof, to the full extent now or hereafter
permitted by law.
SECTION 4.4. VOTING POWER FOR HOLDERS OF COMMON AND PREFERRED STOCK.
Except as otherwise provided in this Certificate of Incorporation, each
holder of Common Stock shall be entitled to one vote for each share of Common
Stock held by him or her on all matters submitted to stockholders for a vote
and each holder of any series of Preferred Stock shall be entitled to such
number of votes for each share held by him or her as may be specified herein
or in the Certificate of Designation in respect thereof.
ARTICLE V.
The amount of the authorized stock of the Corporation of any class or
classes may be increased or decreased by the affirmative vote of the holders
of a majority of the stock of the Corporation entitled to vote generally in
the election of Directors, voting together as a single class.
ARTICLE VI.
SECTION 6.1. NUMBER, ELECTION AND TERMS OF DIRECTORS.
Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the number of the
directors of the Corporation (each, a "Director" and collectively, the
"Directors") which shall constitute the entire board shall be not less than
one nor more than 20. Within such limits, the exact number of directors
constituting the entire board shall be fixed from time to time exclusively
pursuant to a resolution adopted by a majority of the total number of
Directors which the corporation would have if there were no vacancies (the
"Whole Board"). The Directors, other than those who may be elected by the
holders of any series of Preferred Stock, shall be divided, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as reasonably possible, with the term of office of the first
class to expire at the 2000 annual meeting of stockholders, the term of
office of the second class to expire at the 2001 annual meeting of
stockholders and the term of office of the third class to expire at the 2002
annual meeting of stockholders, with each Director to hold office until his
or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders of the Corporation, (i) Directors elected to succeed
those Directors whose terms then expire shall be elected for a term of office
to expire at the third
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succeeding annual meeting of stockholders after their election, with each
Director to hold office, subject to any qualifications or approvals required
under any Gaming Laws (as hereinafter defined in Article X), until his or her
successor shall have been duly elected and qualified, and (ii) if authorized
by a resolution of the Board of Directors, Directors may be elected to fill
any vacancy on the Board of Directors, regardless of how such vacancy shall
have been created. For purposes of this Certificate of Incorporation, an
individual shall be qualified to serve as a Director only for so long as such
individual is determined to be, and continues to be, qualified by all
applicable Gaming Authorities (as hereinafter defined in Article X) and under
all applicable Gaming Laws, as required, and in the event such individual
does not continue to be so qualified, such individual shall be disqualified
and shall cease to be a Director.
SECTION 6.2. STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES AND
INTRODUCTION OF BUSINESS.
Advance notice of stockholder nominations for the election of Directors
and advance notice of business to be brought by stockholders before an annual
or special meeting of the stockholders shall be given in the manner provided
in the By-Laws of the Corporation.
SECTION 6.3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS.
Subject to applicable law and the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
and unless the Board of Directors otherwise determines, vacancies resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, and newly created directorships resulting from any increase in
the authorized number of Directors, may be filled only by the affirmative
vote of a majority of the remaining Directors, though less than a quorum of
the Board of Directors. Subject to the obtaining of approval by any Gaming
Authority required before such person can become, or serve as, a Director,
any Director so chosen pursuant to the preceding sentence shall hold office
for the remainder of the full term expiring at the annual meeting of the
stockholders at which the term of office of the class to which such Director
has been elected expires and until such Director's successor shall have been
duly elected and qualified. No decrease in the number of authorized Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
SECTION 6.4. REMOVAL.
Subject to the rights of the holders of any series of Preferred Stock to
elect Directors under specified circumstances, any Director may be removed
from office, but only "for cause," and only by the affirmative vote of the
holders of at least 75% of the voting power of all shares of capital stock of
the Corporation entitled to vote generally in the election of directors,
voting together as a single class. For the purposes of this Section 6.4,
"for cause" shall mean (i) the willful and continuous failure of a Director
to substantially perform or observe his or her duties to the Corporation
(other than any such failure resulting from physical or mental incapacity of
such Director), or (ii) the willful engagement by a Director in gross
misconduct which is materially and demonstrably injurious to the Corporation.
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SECTION 6.5. ELECTION BY BALLOTS.
Election of Directors need not be by ballot unless the By-Laws of the
Corporation shall so provide.
SECTION 6.6. CONSIDERATION.
Directors and officers, in exercising their respective powers with a
view to the interests of the Corporation, may consider:
(A) the interests of the Corporation's employees, suppliers, creditors
and customers;
(B) the economy of the state and nation;
(C) the interests of the community and of society; and
(D) the long-term as well as short-term interests of the Corporation
and its stockholders, including the possibility that these interests may be
best served by the continued independence of the Corporation.
This Section 6.6 does not create or authorize any causes of action
against the Corporation or its Directors or officers.
ARTICLE VII.
Subject to the rights of the holders of any series of Preferred Stock,
any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such
holders. Subject to the rights of the holders of any series of Preferred
Stock, special meetings of stockholders of the Corporation may be called only
by the Chairman of the Board or by the Board of Directors pursuant to a
resolution adopted by a majority of the Whole Board.
ARTICLE VIII.
The Board of Directors shall have power to make, alter, amend and repeal
the By-Laws of the Corporation. Any By-Laws made by the Directors under the
powers conferred hereby may be altered, amended or repealed by the Directors
or by the stockholders. Notwithstanding the foregoing and anything contained
in this Certificate of Incorporation to the contrary, none of the provisions
of the By-Laws shall be altered, amended or repealed by the stockholders
without the affirmative vote of the holders of at least 75% of the voting
power of all the shares of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class.
ARTICLE IX.
SECTION 9.1. VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS.
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(A) HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS.
In addition to any affirmative vote required by law or this Certificate
of Incorporation, and except as otherwise expressly provided in Section 9.2:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) of $20,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $20,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 75% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (for the
purposes of this Article IX, the "Voting Stock"), voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
(B) DEFINITION OF "BUSINESS COMBINATION."
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The term "Business Combination" as used in this Article IX shall mean
any transaction which is referred to in any one or more of clauses (i)
through (v) of paragraph (A) of this Section 9.1.
SECTION 9.2. WHEN HIGHER VOTE IS NOT REQUIRED.
The provisions of Section 9.1 shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by law or in any agreement with any national
securities exchange or otherwise and any other provision of this Certificate
of Incorporation, if all of the conditions specified in either of the
following paragraphs (A) and (B) are met:
(A) APPROVAL BY DISINTERESTED DIRECTORS.
The Business Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
(B) PRICE AND PROCEDURE REQUIREMENTS.
All of the following conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the following:
(a) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common Stock acquired by it (1)
within the two-year period immediately prior to the first public announcement
of the proposal of the Business Combination (the "Announcement Date") or (2)
in the transaction in which it became an Interested Stockholder, whichever is
higher; and
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became
an Interested Stockholder (such later date is referred to in this Article IX
as the "Determination Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of any other
class of outstanding Voting Stock, (other than Excluded Preferred Stock, as
hereinafter defined) shall be at least equal to the highest of the following
(it being intended that the provisions of this paragraph (B) (ii) shall be
required to be met with respect to every class of outstanding Voting Stock
(other than Excluded Preferred Stock), whether or not the Interested
Stockholder has previously acquired any shares of a particular class of
Voting Stock):
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(a) if applicable, the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of such class of Voting Stock
acquired by it (1) within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) if applicable, the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are entitled in
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation; and
(c) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date, whichever is
higher.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock and other than
Excluded Preferred Stock) shall be in cash or in the same form as the
Interested Stockholder has previously paid for shares of such class of Voting
Stock. If the Interested Stockholder has paid for shares of any class of
Voting Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting Stock previously
acquired by it. The price determined in accordance with paragraphs (B)(i)
and (B)(ii) of this Section 9.2 shall be subject to appropriate adjustment in
the event of any stock dividend, stock split, combination of shares or
similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (a)
except as approved by a majority of the Disinterested Directors, there shall
have been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any outstanding Preferred
Stock; (b) there shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Disinterested Directors, and (2) an increase in such annual rate of dividends
as necessary to reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is approved by a majority
of the Disinterested Directors; and (c) such Interested Stockholder shall
have not become the beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit
directly or indirectly (except proportionately as a stockholder or in the
ordinary course of the Corporation's business) of any loans, advances,
guarantees, pledges or other financial assistance or any
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tax credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations thereunder (or any subsequent provisions replacing such act,
rules or regulations) shall be mailed to public stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required
to be mailed pursuant to such Act or subsequent provisions).
SECTION 9.3. CERTAIN DEFINITIONS.
For the purposes of this Article IX:
(A) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the rules and regulations under the
Exchange Act.
(B) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(C) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in paragraphs (B)(i) and (B)(ii) of Section 9.2 shall
include the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
(D) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with the Interested
Stockholder and was a member of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder, and any Director
who is thereafter appointed to fill any vacancy on such Board or who is
elected and, in either event, who is unaffiliated with the Interested
Stockholder and in connection with his or her initial assumption of office is
recommended for appointment or election by a majority of Disinterested
Directors then on the Board of Directors.
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(E) "Excluded Preferred Stock" means any series of Preferred Stock
with respect to which the Certificate of Designation creating such series
expressly provides that the provisions of this Article IX shall not apply.
(F) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the Composite Tape for New York
Stock Exchange Listed Stocks, or if such stock is not quoted on the 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 bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the Nasdaq National Market or any system then in use, or if no
such quotations are available, the fair market value on the date in question
of a share of such stock as determined by the Board of Directors in good
faith; and (ii) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by the
Board of Directors in good faith.
(G) "Interested Stockholder" means any person (other than the
Corporation or any Subsidiary, as hereinafter defined) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 10% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power
of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have occurred
in the course of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of 1933, as amended.
For the purposes of determining whether a person is an Interested Stockholder
pursuant to paragraph (G) of this Section 9.3, the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned by such
person through application of paragraph (B) of this Section 9.3 but shall not
include any other shares of Voting Stock owned by any other person which may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(H) A "person" means any individual, firm, corporation, limited
liability company, trust or other entity.
(I) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Interested Stockholder set forth in paragraph (G) of this Section 9.3,
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the term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
Corporation.
SECTION 9.4. POWERS OF THE BOARD OF DIRECTORS.
A majority of the Whole Board shall have the power and duty to determine
for the purposes of this Article IX, on the basis of information known to
them after reasonable inquiry, (A) whether a person is an Interested
Stockholder, (B) the number of shares of Voting Stock beneficially owned by
any person, (C) whether a person is an Affiliate or Associate of another, and
(D) whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
has, an aggregate Fair Market Value of $20,000,000 or more. A majority of
the Whole Board shall have the further power to interpret all of the terms
and provisions of this Article IX.
SECTION 9.5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
STOCKHOLDERS.
Nothing contained in this Article IX shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
ARTICLE X.
(A) If the Corporation becomes, and so long as it remains, either a
holding company or an intermediary holding company subject to regulation
under any Gaming Laws, all Securities (as hereinafter defined) of the
Corporation shall be held subject to the applicable provisions of such Gaming
Laws. If any person (as hereinafter defined) which beneficially owns
Securities of the Corporation (i) is requested or required pursuant to any
Gaming Law to appear before, or submit to the jurisdiction of, or provide
information to, any Gaming Authority and either refuses to do so or otherwise
fails to comply with such request or requirement within a reasonable period
of time or (ii) is determined or shall have been determined by any Gaming
Authority not to be suitable or qualified with respect to the beneficial
ownership of Securities of the Corporation, then at the election of the
Corporation (unless otherwise required by any Gaming Authority or Gaming
Law): (a) each such person owning such Securities in the Corporation hereby
agrees to sell to the Corporation and the Corporation shall have the absolute
right in its sole discretion to repurchase, any or all of the Securities of
the Corporation beneficially owned by such person at a price determined
pursuant to paragraph (C) hereof; or (b) each such person owning such
Securities in the Corporation hereby agrees to otherwise dispose of his or
her interest in the Corporation within the 120 day period commencing on the
date on which the Corporation receives notice from a Gaming Authority of such
holder's unsuitability or disqualification (or an earlier time if so required
by a Gaming Authority or any Gaming Law) and the Corporation shall have no
obligation to repurchase, any or all of the Securities of the Corporation
beneficially owned by such person. The operation of this Article X shall not
be stayed by an appeal from a determination of any Gaming Authority.
(B) If the Corporation intends to repurchase Securities beneficially
owned by any person referred to in clause (i) or (ii) of paragraph (A)
hereof, it shall notify the person in writing
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of such intention, specifying the Securities to be repurchased, the date,
time and place when such repurchase will be consummated (the "Repurchase
Date"), which date in no event will be earlier than three business days after
the date of such notice, and the price at which such Securities will be
repurchased (it being sufficient for the purposes of this Article X for the
Corporation to indicate generally that the price will be determined in
accordance with paragraph (C) hereof). If the Corporation gives the notice
provided for by the preceding sentence (the "Repurchase Notice"), such notice
shall be deemed to constitute a binding agreement on the part of the
Corporation to repurchase, and on the part of the person notified to sell,
the Securities referred to in such Notice in accordance with this Article X.
Following the Repurchase Date (or an earlier date if required by any Gaming
Authority or Gaming Law), no dividends will be payable on and no voting
rights will be available to the holders of any Securities covered by such
Repurchase Notice which has not been duly delivered by the holder thereof for
repurchase by the Corporation. If, following such Repurchase Date, any
Securities with respect to which a Repurchase Notice has been given have not
been duly delivered by the holder thereof for repurchase by the Corporation,
the Corporation shall deposit in escrow or otherwise hold in trust for the
benefit of such holder an amount equal to the aggregate Market Price (as
hereinafter defined) of the stock to be repurchased except that to the extent
New Shares (as hereinafter defined) are to be repurchased and the Purchase
Price (as hereinafter defined) thereof shall have been publicly disclosed or
otherwise made available to the Corporation, the amount deposited in escrow
or otherwise segregated with respect to such New Shares may be the lesser of
the Market Price thereof on the date of the Repurchase Notice and the
Purchase Price thereof. The establishment of such an account shall in no way
alter the amount otherwise payable to any person pursuant to this Article X.
No interest shall be paid on or accrue with respect to any amount so
deposited or held.
(C)
(i) In the event that the person to whom a Repurchase Notice is
directed pursuant to paragraph (B) hereof has acquired beneficial ownership
of Securities within the 24-month period terminating on the date of such
Notice ("New Shares"), the price at which the Corporation shall repurchase
such New Shares as are covered by the Repurchase Notice shall be the lesser
of the Market Price thereof on the date of such Notice and the Purchase Price
thereof.
(ii) In the event that the person to whom a Repurchase Notice is
directed pursuant to paragraph (B) hereof has acquired beneficial ownership
of any or all of his or her Securities prior to the 24-month period
terminating on the date of such Notice ("Old Shares"), the price at which the
Corporation shall repurchase such Old Shares as are covered by the Repurchase
Notice shall be the Market Price thereof on the date of the Repurchase
Notice.
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(iii) The Corporation shall have the option in its sole discretion
of designating which of the Securities beneficially owned by any person
referred to in clause (i) or (ii) of paragraph (iv)(A) hereof are subject to
the Repurchase Notice and, for purposes hereof, it shall be sufficient for
the Corporation to indicate generally that Securities shall be repurchased
based on the order in which they were purchased or based on the reverse of
such order.
(iv) Any person to whom a Repurchase Notice is given pursuant to
the provisions of this Article shall have the burden of establishing to the
satisfaction of the Corporation the dates on which and prices at which such
person acquired the Securities subject to such Notice.
(D) For the purposes of this Article X:
(1) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the rules and regulations under the
Exchange Act.
(2) "Gaming Authority" means any government, court, or federal,
state, local, international or foreign governmental, administrative or
regulatory and licensing body, agency, authority or official, which
regulates, has authority over, or otherwise asserts jurisdiction over gaming
activities (or proposed gaming activities), gaming operations or facilities
conducted by the Corporation or any of its subsidiaries or Affiliates, within
any gaming jurisdictions (domestic and foreign and the political subdivisions
thereof), whether now or hereafter existing, including without limitation,
the Nevada Gaming Control Board, the Nevada Gaming Commission, the Clark
County Liquor and Gaming Licensing Board, the New Jersey Casino Control
Commission, the Louisiana Gaming Control Board, the Mississippi Gaming
Commission and the Missouri Gaming Commission.
(3) "Gaming Law" means any federal, state, local, international or
foreign law, statute, order, ordinance or interpretation pursuant to which
any Gaming Authority possesses or asserts regulatory or licensing authority
over gaming activities, operations or facilities within any gaming
jurisdictions (domestic and foreign and the political subdivisions thereof),
and all rules and regulations promulgated by such Gaming Authority
thereunder, including, without limitation, the Nevada Gaming Control Act, the
Clark County Code, the New Jersey Casino Control Act, the Louisiana Riverboat
Economic Development and Gaming Control Act, the Mississippi Gaming Control
Act and the Missouri Gaming Law.
(4) "Market Price" means the average of the last sale prices of a
Security on the Composite Tape for New York Stock Exchange Listed Stocks for
each of the 15 consecutive trading days (the "Valuation Period") commencing
16 trading days prior to the date in question; provided that if such Security
is not quoted on the Composite Tape, such average last sale price shall be
derived from the average last sale prices on the New
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York Stock Exchange, or, if such Security is not listed on such exchange, on
the principal United States securities exchange registered under the Exchange
Act on which such Security is listed, or, if such Security is not listed on
any such exchange, the average of the closing bid quotations with respect to
such a Security during the Valuation Period on the Nasdaq National Market or
any system then in use, or if no such quotations are available, the fair
market value of such a Security on the date in question as determined by the
Board of Directors in good faith.
(5) A "person" means any individual, firm, corporation, limited
liability company, trust or other entity.
(6) A person shall be a "beneficial owner" of any Securities:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any Securities.
(7) "Purchase Price" means the price paid to acquire a share of
Securities, exclusive of commissions, taxes and other fees and expenses,
adjusted for any stock split, stock dividend, combination of shares or
similar event.
(8) "Securities" means any shares of capital stock, bonds, notes,
convertible debentures, warrants or other instruments that represent a share
in the Corporation or a debt owed by the Corporation.
(E) A majority of the Whole Board shall have the power and duty to
determine for the purposes of this Article X on the basis of information
known to them after reasonable inquiry, whether clause (i) or (ii) of
paragraph (A) hereof applies to any person who beneficially owns Securities
of the Corporation such that the Corporation shall have the right to
repurchase shares of Securities held by such person or require the
disposition of such person's interest in the Corporation pursuant to this
ArticleX.
ARTICLE XI.
SECTION 11.1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS.
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To the fullest extent permitted by the DGCL, as the same exists or may
hereafter be amended, no Director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director. No amendment of this Certificate of
Incorporation or repeal of any of its provisions shall limit or eliminate any
right or protection of a Director of this Corporation under this Section 11.1
for or with respect to any acts or omissions of such Director occurring prior
to such amendment or repeal.
Section 11.2. INDEMNIFICATION.
The Corporation shall indemnify (A) its Directors and officers, whether
serving the Corporation or at its request, any other entity, to the full
extent required or permitted by the DGCL now or hereafter in force, including
the advance of expenses under the procedures and to the full extent permitted
by law and (B) other employees and agents to such extent as shall be
expressly authorized by the Board of Directors or the By-Laws and as
permitted by law. The foregoing rights of indemnification shall not be
exclusive of any other rights to which those seeking indemnification may be
entitled. The Board of Directors may take such action as is necessary to
carry out these indemnification provisions and is expressly empowered to
adopt, approve and amend from time to time such by-laws, resolutions or
contracts implementing such provisions or such further indemnification
arrangements as may be permitted by law. No amendment of this Certificate of
Incorporation or repeal of any of its provisions shall limit or eliminate the
right to indemnification provided under this Section 11.2 with respect to any
acts or omissions occurring prior to such amendment or repeal.
ARTICLE XII.
Subject to the following sentence and applicable Gaming Laws, the
Corporation reserves the right at any time and from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation or the By-Laws, and other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted, in the
manner now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Certificate of Incorporation
in its present form or as hereafter amended are granted subject to the right
reserved in this Article. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 75% of the voting power of all the then outstanding
shares of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required to alter,
amend or repeal any provision under Article VI, VII, VIII, IX, XI or XII
contained in this Certificate of Incorporation.
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IT IS HEREBY CERTIFIED that the foregoing Amended and Restated
Certificate of Incorporation, which restates and further amends the
Certificate of Incorporation of Park Place Entertainment Corporation, was
adopted by the Board of Directors of Park Place Entertainment Corporation in
a resolution and declaring its advisability, in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware (the "DGCL") and by written consent of its sole stockholder in
accordance with Section 228 of the DGCL.
IN WITNESS WHEREOF, Park Place Entertainment Corporation has caused this
Amended and Restated Certificate of Incorporation to be signed by its
Executive Vice President - Law and Corporate Affairs on this 15th day of
December, 1998.
Park Place Entertainment Corporation
By: /s/ Clive S. Cummis
-----------------------------------
Name: Clive S. Cummis
Title: Executive Vice President -
Law and Corporate Affairs
and Secretary
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