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EXHIBIT 3.4
CERTIFICATE OF DESIGNATION
OF THE
9 1/4% SERIES B CUMULATIVE
PREFERRED STOCK
(NO PAR VALUE PER SHARE)
OF
HARD ROCK HOTEL, INC.
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Pursuant to Section 78.1955 of the
Nevada Revised Statutes
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The undersigned, being the president and the secretary of
Hard Rock Hotel, Inc., a Nevada corporation (the "CORPORATION"), hereby
certifies that the Board of Directors of the Corporation adopted the
following resolution by unanimous written consent, with the same force and
effect as if it were approved and adopted at a duly constituted meeting of
the Board of Directors, pursuant to the authority of Section 78.315(2) of the
Nevada Revised Statutes and Section 2.17 of the Second Amended and Restated
Bylaws (the "Bylaws") of the Corporation, as of May 30, 2000:
RESOLVED, that pursuant to the authority expressly granted
to and vested in the Board of Directors of the Corporation by the Second
Amended and Restated Articles of Incorporation of the Corporation, as amended
(the "ARTICLES OF INCORPORATION"), the Board of Directors hereby authorizes
the creation of a series of preferred stock, no par value per share, of the
Corporation, consisting of one (1) share of 9 1/4% Series B Cumulative
Preferred Stock (the "PREFERRED STOCK") upon the terms and conditions set
forth in this Certificate of Designation (this "CERTIFICATE"), and hereby
fixes the designation and number of shares thereof and fixes the powers,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations and restrictions thereof (in addition to
those set forth in the Articles of Incorporation that may be applicable to
the Preferred Stock) as follows:
1. Certain Definitions. Unless the context otherwise requires, the
terms defined in this paragraph 1 shall have, for all purposes of this
resolution, the meanings herein specified.
"COMMON STOCK" shall mean all shares now or hereafter authorized of
any class of Common Stock of the Corporation and any other stock of the
Corporation, howsoever designated, authorized after the Issue Date, which
has the right (subject always to prior rights of any
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class or series of preferred stock) to participate in the distribution of the
assets and earnings of the Corporation without limit as to per share amount.
"DIVIDEND PAYMENT DATE" shall have the meaning set forth in
subparagraph 2(a) below.
"DIVIDEND PERIOD" means (i) the period between the Issue Date and
the first Dividend Payment Date and (ii) each semi-annual period between
consecutive Dividend Payment Dates.
"GAMING AUTHORITY" shall mean any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government, any state, province or
any city or other political subdivision, whether now or hereafter existing,
or any officer or official thereof, including without limitation, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, the City of Las
Vegas, the Clark County Liquor and Gaming Licensing Board and any other
agency with authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Corporation or any of its
Subsidiaries.
"ISSUE DATE" shall mean the date that the share of Preferred Stock
is first issued by the Corporation.
"JUNIOR STOCK" shall mean, for purposes of paragraphs 2 and 8 below,
the Common Stock and any other class or series of stock of the Corporation
issued after the Issue Date not entitled to receive any dividends in any
Dividend Period unless all dividends required to have been paid or declared
and set apart for payment on the Preferred Stock shall have been so paid or
declared and set apart for payment and, for purposes of paragraphs 3 and 8
below, any class or series of stock of the Corporation issued after the Issue
Date not entitled to receive any assets upon the liquidation, dissolution or
winding up of the affairs of the Corporation until the Preferred Stock shall
have received the entire amount to which such stock is entitled upon such
liquidation, dissolution or winding up.
"PARITY STOCK" shall mean the Corporation's 9 1/4% Series A
Cumulative Preferred Stock and, for purposes of paragraphs 2 and 8 below, any
other class or series of stock of the Corporation issued after the Issue
Date entitled to receive payment of dividends on a parity with the Preferred
Stock and, for purposes of paragraphs 3 and 8 below, any other class or
series of stock of the Corporation issued after the Issue Date entitled to
receive assets upon the liquidation, dissolution or winding up of the affairs
of the Corporation on a parity with the Preferred Stock.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"RECORD DATE" shall mean, with respect to the dividend payable on
November 30 and May 31, respectively, of each year, the preceding November 15
and May 15, or such other record
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date designated by the Board of Directors of the Corporation with respect to the
dividend payable on such respective Dividend Payment Date.
"SECURITIES" shall mean any series of the Corporation's 9 1/4%
Senior Subordinated Notes Due April 1, 2005.
"SENIOR STOCK" shall mean, for purposes of paragraphs 2 and 8 below,
any class or series of stock of the Corporation issued after the Issue Date
ranking senior to the Preferred Stock in respect of the right to receive
dividends, and, for purposes of paragraphs 3 and 8 below, any class or series
of stock of the Corporation issued after the Issue Date ranking senior to the
Preferred Stock in respect of the right to receive assets upon the
liquidation, dissolution or winding up of the affairs of the Corporation.
"SUBSCRIPTION PRICE" shall mean $20,000,000 per share.
"SUBSIDIARY" shall mean any corporation of which shares of stock
possessing at least a majority of the general voting power in electing the
board of directors are, at the time as of which any determination is being
made, owned by the Corporation, whether directly or indirectly through one or
more Subsidiaries.
2. DIVIDENDS.
(a) Subject to the prior preferences and other rights of
any Senior Stock, the holder of the Preferred Stock shall be entitled to
receive, out of funds legally available for that purpose, cash dividends at
the rate of 9 1/4% per annum, and no more. Such dividends shall be cumulative
from the Issue Date and shall be payable in arrears, when and as declared by
the Board of Directors, on November 30 and May 31 of each year (each such
date being herein referred to as a "Dividend Payment Date"), commencing on
November 30, 2000. Each such dividend shall be paid to the holder of record
of the Preferred Stock as its name appears on the share register of the
Corporation on the corresponding Record Date. Dividends on account of arrears
for any past Dividend Periods may be declared and paid at any time, without
reference to any Dividend Payment Date, to the holder of record on such date,
not exceeding 50 days preceding the payment date thereof, as may be fixed by
the Board of Directors.
(b) In the event that full cash dividends are not paid or
made available to the holder of the outstanding share of Preferred Stock and
of any Parity Stock, and funds available shall be insufficient to permit
payment in full in cash to all such holders of the preferential amounts to
which they are then entitled, the entire amount available for payment of cash
dividends shall be distributed among the holders of the Preferred Stock and
of any Parity Stock ratably in proportion to the full amount to which they
would otherwise be respectively entitled, and any remainder not paid in cash
to the holder of the Preferred Stock shall cumulate as provided in
subparagraph 2(c) below.
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(c) Dividends on the Preferred Stock shall cumulate whether
or not the Corporation has earnings or profits, whether or not there are
funds legally available for the payment of such dividends and whether or not
dividends are declared. To the extent not declared and paid in cash,
dividends in respect of any Dividend Payment Date shall cumulate and be
compounded semi-annually at the rate of 9 1/4% per annum until paid. The
aggregate dividend payable to the holder of the Preferred Stock shall be
based on the aggregate number of shares of Preferred Stock held by such
holder at the close of business on the applicable Record Date and rounded to
the nearest whole cent (with one-half cent rounded upward). Dividends payable
on the Preferred Stock shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(d) So long as the Preferred Stock shall be outstanding,
the Corporation shall not declare or pay on any Junior Stock any dividend
whatsoever, whether in cash, property or otherwise (other than dividends
payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of fractional
shares), nor shall the Corporation make any distribution on any Junior Stock,
nor shall any Junior Stock be purchased or redeemed by the Corporation or any
Subsidiary, nor shall any monies be paid or made available for a sinking fund
for the purchase or redemption of any Junior Stock, unless all dividends to
which the holder of Preferred Stock shall have been entitled for all previous
Dividend Periods shall have been paid or declared and a sum of money
sufficient for the payment thereof set apart.
3. DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP. In the
event of any voluntary or involuntary liquidation, dissolution or other
winding up of the affairs of the Corporation, subject to the prior
preferences and other rights of any Senior Stock, but before any distribution
or payment shall be made to the holders of Junior Stock, the holder of the
Preferred Stock shall be entitled to be paid the Subscription Price of the
Preferred Stock as of the date of such liquidation or dissolution or such
other winding up, plus any accrued and unpaid dividends thereon to such date,
and no more, in cash or in property taken at its fair value as determined by
the Board of Directors, or both, at the election of the Board of Directors.
If such payment shall have been made in full to the holder of the Preferred
Stock, and if payment shall have been made in full to the holders of any
Senior Stock and Parity Stock of all amounts to which such holders shall be
entitled, the remaining assets and funds of the Corporation shall be
distributed among the holders of Junior Stock, according to their respective
shares and priorities. If, upon any such liquidation, dissolution or other
winding up of the affairs of the Corporation, the net assets of the
Corporation distributable among the holders of all outstanding shares of the
Preferred Stock and of any Parity Stock shall be insufficient to permit the
payment in full to such holders of the preferential amounts to which they are
entitled, then the entire net assets of the Corporation remaining after the
distributions to holders of any Senior Stock of the full amounts to which
they may be entitled shall be distributed among the holders of the Preferred
Stock and of any Parity Stock ratably in proportion to the full amounts to
which they would otherwise be respectively entitled. Neither the
consolidation or merger of the Corporation into or with another corporation
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or corporations, nor the sale of all or substantially all of the assets of
the Corporation to another corporation or corporations shall be deemed a
liquidation, dissolution or winding up of the affairs of the Corporation
within the meaning of this paragraph 3.
4. MATURITY.
(a) MATURITY. The Corporation shall repurchase the
Preferred Stock 91 days following the earlier of (i) April 1, 2005 or (ii)
the repayment of the Securities, at an amount per share equal to the
Subscription Price, together with any accrued but unpaid dividends thereon to
and including the date of repurchase.
5. REGULATORY REDEMPTION
(a) MANDATORY DISPOSITION PURSUANT TO GAMING LAWS. The
holder of the Preferred Stock, by accepting the Preferred Stock, shall be
deemed to have agreed (to the extent permitted by applicable law) that if the
Gaming Authorities require that a Person who is a holder or a beneficial
owner of any of the Preferred Stock must be licensed or found suitable under
applicable gaming laws, such holder shall apply for a license or a finding of
suitability within the required time period. If such Person fails to apply or
become licensed or is found unsuitable, the Corporation shall have the right,
at its option,
(1) to require such Person to dispose of its
Preferred Stock or beneficial interest
therein within 30 days of receipt of notice
of the Corporation's election or such
earlier date as may be ordered by the Gaming
Authorities, or
(2) to redeem such Preferred Stock (a
"REGULATORY REDEMPTION") at a price equal to
the lesser of (a) the holder's cost thereof
and (b) 100% of the Subscription Price
thereof, in either case plus accrued and
unpaid dividends, if any, to the date of
redemption.
In the event the Corporation opts to redeem Preferred Stock, it
shall provide notice of the redemption to the holder, or, if applicable, a
transfer agent, as soon as practicable. The holder or beneficial owner
applying for a license or finding of suitability must pay all costs of the
licensure or investigation for such finding.
(b) PROCEDURES FOR REDEMPTIONS. On and after a redemption
date, unless the Corporation defaults in the payment of the applicable
redemption price, including, to the extent required, all accrued and unpaid
dividends thereon, dividends shall cease to accrue on the Preferred Stock
called for redemption and all rights of the holder of such share shall
terminate except for the right to receive the redemption price, together with
all accrued and unpaid dividends thereon, if any, without interest. The share
of Preferred Stock issued and reacquired shall, upon compliance with the
applicable requirements of Nevada law, have the status of an
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authorized but unissued share of preferred stock of the Corporation
undesignated as to series and, together with any and all other authorized but
unissued shares of preferred stock of the Corporation, may be designated or
redesignated and issued or reissued, as the case may be, as part of any
series of preferred stock of the Corporation, except that any issuance or
reissuance of the share of Preferred Stock must be in compliance with this
Certificate of Designation.
6. VOTING RIGHTS.
(a) The holder of the issued and outstanding share of
Preferred Stock shall have no voting rights except as set forth herein and as
required by law.
(b) Without the consent of the holder of the Preferred
Stock then outstanding, voting as a class, given in writing or by vote at a
meeting of stockholders called for such purpose, the Corporation will not
(i) increase the authorized amount of
Preferred Stock;
(ii) create any class of Senior Stock or
increase the authorized amount of any such class;
(iii) reclassify any class or series of
Junior Stock into Senior Stock or reclassify any series of Parity Stock into
Senior Stock;
(iv) amend, alter or repeal any
provision of the Articles of Incorporation or this Certificate so as to alter
or change any preference or any relative or other right of the Preferred
Stock; or
(c) In connection with any matter on which the holder of
the Preferred Stock is entitled to vote as provided in subparagraph (b)
above, or any matter on which the holder of the Preferred Stock are entitled
to vote as one class or otherwise pursuant to law or the provisions of the
Articles of Incorporation or Bylaws, the holder of the Preferred Stock shall
be entitled to one vote for the share of Preferred Stock held by such holder.
7. CAPITAL.
On any redemption of Preferred Stock, the Corporation's
capital shall be reduced by an amount equal to the Subscription Price
multiplied by the number of shares of certificates representing Preferred
Stock whether or not all such certificates have been surrendered to the
Corporation.
8. EXCLUSION OF OTHER RIGHTS.
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Except as may otherwise be required by law, the share of
Preferred Stock shall not have any preferences or relative, participating,
optional or other special rights, other than those specifically set forth in
this resolution (as such resolution may be amended from time to time) and in the
Articles of Incorporation. The share of Preferred Stock shall have no preemptive
or subscription rights.
9. HEADINGS OF SUBDIVISIONS.
The headings of the various subdivisions hereof are for
convenience of reference only and shall not affect the interpretation of any of
the provisions hereof.
10. SEVERABILITY OF PROVISIONS.
Whenever possible, each provision hereof shall be interpreted
in a manner as to be effective and valid under applicable law, but if any
provision hereof is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or otherwise adversely affecting the remaining
provisions hereof.
11. STATUS OF REACQUIRED SHARES.
If the Corporation issues and reacquires the share of
Preferred Stock in any manner (upon compliance with any applicable provisions
of the laws of the State of Nevada) such share shall have the status of an
authorized and unissued share of Preferred Stock issuable in series
undesignated as to series and may be redesignated and reissued.
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IN WITNESS WHEREOF, Hard Rock Hotel, Inc. has caused this
certificate to be signed on its behalf by Peter Morton, its President and
Secretary, this 30th day of May, 2000.
HARD ROCK HOTEL, INC.
By:
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President and Secretary
State of California )
)ss.
County of Los Angeles )
This instrument was acknowledged before me on _________, 2000 by Peter
Morton as President of Hard Rock Hotel, Inc., a Nevada corporation.
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Notary
