Exhibit 3.3
State of Delaware PAGE 1
Office of the Secretary of State
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "PENINSULA GAMING CORPORATION", FILED IN THIS OFFICE ON THE
THIRTEENTH DAY OF APRIL, A.D. 1999, AT 12 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
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Edward J. Freel, Secretary of
State
3031528 8100 AUTHENTICATION: 9772190
991213528 DATE: 05-27-99
4-13-99
CERTIFICATE OF INCORPORATION
OF
PENINSULA GAMING CORPORATION
FIRST: The name of the Corporation is Peninsula Gaming Corporation
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purpose 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.
FOURTH: The total number of shares of capital stock which the Corporation
shall have authority to issue is 1,000 shares of Common Stock, par value $.01
per share.
FIFTH: The name and mailing address of the incorporator is as follows:
Edward A. Davis
Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
SIXTH: (1) Directors of the Corporation shall have no personal liability
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided that nothing contained in this Article
SIXTH shall eliminate or limit the liability of a director (i) for any breach of
a director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violations of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which a director
derived an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then by virtue of this Article
SIXTH 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.
(2) The Corporation shall indemnify, in accordance with the By-laws of the
Corporation, to the fullest extent permitted from time to time by the General
Corporation Law of the State of
Delaware or any other applicable laws as presently or hereafter in effect, 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, including, without limitation, an
action by or in the right of the Corporation), by reason of his acting as a
director or officer of the Corporation (and the Corporation, in the discretion
of the Board of Directors, may so indemnify a person by reason of the fact that
he is or was an employee or agent of the Corporation or is or was serving at the
request of the Corporation in any other capacity for or on behalf of the
Corporation) against any liability or expense actually and reasonably incurred
by such person in respect thereof; provided, however, the Corporation shall be
required to indemnify an officer or director in connection with an action, suit
or proceeding (or part thereof) initiated by such person only if such action,
suit or proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. Such indemnification is not exclusive of any other right to
indemnification provided by law or otherwise. The right to indemnification
conferred by this Section (2) shall be deemed to be a contract between the
Corporation and each person referred to herein.
(3) If a claim under Section (2) of this Article SIXTH is not paid in full
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where any undertaking required by
the By-laws of the Corporation has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware and Section 2 of this
Article SIXTH for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(4) Indemnification shall include payment by the Corporation of expenses
in defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment of it is ultimately determined that such person is not
entitled to indemnification under this Article SIXTH, which undertaking may be
accepted without reference to the financial ability of such person to make such
repayment.
(5) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article SIXTH shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute,
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provision of this Certificate of Incorporation, by-law, agreement, contract,
vote of stockholders or disinterested directors, or otherwise.
(6) The Corporation may purchase and maintain insurance on behalf of any
person who 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 any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article SIXTH, the General Corporation Law of the State
of Delaware, or otherwise.
(7) No amendment to or repeal of all or any part of this Article SIXTH
shall adversely affect any right or protection existing at the time of such
repeal or amendment.
SEVENTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, adopt, alter,
amend or repeal the By-laws of the Corporation.
EIGHTH: Meetings of the stockholders may be held within or without the
State of Delaware, as may be designated by or in the manner provided in the
By-laws. The books of the Corporation may be kept (subject to the provisions of
any law or regulation) outside 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 By-laws
of the Corporation. Elections of directors need not be by written ballot unless
the By-laws of the Corporation shall so provide.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
TENTH: The Corporation elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
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, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand as of April 9, 1999.
/s/ Edward A. Davis
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Edward A. Davis
Sole Incorporator
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