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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RESORTS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 59-0763055
(State of incorporation or organization) (I.R.S. employer identification no.)
1133 Boardwalk, Atlantic City, New Jersey 08401
(Address of principal executive offices) (Zip code)
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RESORTS INTERNATIONAL HOTEL FINANCING, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 65-0461729
(State of incorporation or organization) (I.R.S. employer identification no.)
1133 Boardwalk, Atlantic City, New Jersey 08401
(Address of principal executive offices) (Zip code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class Name of each exchange on
to be so registered which each class is to be registered
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11% Mortgage Notes due 2003 issued by Resorts International American Stock Exchange
Hotel Financing, Inc. and guaranteed by Resorts International
Hotel, Inc.
Units, each consisting of one share of Class B Redeemable American Stock Exchange
Common Stock, par value $.01 per share, of Resorts
International, Inc. and $1,000 principal amount of 11.375%
Junior Mortgage Notes due 2004 issued by Resorts International
Hotel Financing, Inc. and guaranteed by Resorts International
Hotel, Inc.
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
Page 1 of 4 Pages
Exhibit Index Located on Page 4
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrants' Securities to be Registered
The information called for by this item is incorporated by
reference to the information set forth under the captions "Description of New
RIHF Mortgage Notes", "Description of New RIHF Junior Mortgage Notes" and
"Description of New Equity Securities - Description of RII Class B Common
Stock" in Amendment No. 3 to the Registrants' Registration Statement on Form
S-4 (Registration No. 33-50733) filed on February 1, 1994 with the Securities
and Exchange Commission under the Securities Act of 1933, as amended.
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<CAPTION>
Item 2. Exhibits
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Exhibit 1 Form of Indenture among Resorts International Hotel Financing, Inc., as issuer, Resorts International
Hotel, Inc., as guarantor, and State Street Bank and Trust Company of Connecticut, National
Association, as trustee, with respect to the 11% Mortgage Notes due 2003 (Incorporated by reference
to Exhibit 4.04 to the Registrants' Registration Statement on Form S-4 (Registration No. 33-50733)).
Exhibit 2 Form of 11% Mortgage Note due 2003 (included in Exhibit 1).
Exhibit 3 Form of Indenture among Resorts International Hotel Financing, Inc., as issuer, Resorts International
Hotel, Inc., as guarantor, and U.S. Trust Company of California, N.A., as trustee, with respect to
the 11.375 % Junior Mortgage Notes due 2004 (Incorporated by reference to Exhibit 4.05 to the
Registrants' Registration Statement on Form S-4 (Registration No. 33-50733)).
Exhibit 4 Form of 11.375% Mortgage Note due 2004 (included in Exhibit 3).
Exhibit 5 Form of Proposed Amended and Restated Certificate of Incorporation of Resorts International, Inc.
Exhibit 6 Form of Proposed Amended and Restated By-Laws of Resorts International, Inc. (Incorporated by
reference to Exhibit 3.02 to the Registrants' Registration Statement on Form S-4 (Registration No.
33-50733)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrants have duly caused this Registration
Statement to be signed on their behalf by the undersigned, thereto duly
authorized.
RESORTS INTERNATIONAL, INC.
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<S> <C> <C>
Dated: April 28, 1994 By:/S/
---------------------------
Christopher D. Whitney
Executive Vice President
RESORTS INTERNATIONAL HOTEL FINANCING, INC.
Dated: April 28 , 1994 By:/S/
-------------------------------
Christopher D. Whitney
President
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EXHIBIT INDEX
Sequentially
Numbered Page
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Exhibit 1 Form of Indenture among Resorts International Hotel Financing, Inc., as issuer, Resorts International
Hotel, Inc., as guarantor, and State Street Bank and Trust Company of Connecticut, National Association,
as trustee, with respect to the 11% Mortgage Notes due 2003 (Incorporated by reference to Exhibit 4.04 to
the Registrants' Registration Statement on Form S-4 (Registration No. 33-50733)).
Exhibit 2 Form of 11% Mortgage Note due 2003 (included in Exhibit 1).
Exhibit 3 Form of Indenture among Resorts International Hotel Financing, Inc., as issuer, Resorts International
Hotel, Inc., as guarantor, and U.S. Trust Company of California, N.A., as trustee, with respect to the
11.375 % Junior Mortgage Notes due 2004 (Incorporated by reference to Exhibit 4.05 to the Registrants'
Registration Statement on Form S-4 (Registration No. 33-50733)).
Exhibit 4 Form of 11.375% Mortgage Note due 2004 (included in Exhibit 3).
Exhibit 5 Form of Proposed Amended and Restated Certificate of Incorporation of Resorts International, Inc.
Exhibit 6 Form of Proposed Amended and Restated By-Laws of Resorts International, Inc. (Incorporated by reference to Exhibit
3.02 to the Registrants' Registration Statement on Form S-4 (Registration No. 33-50733)).
</TABLE>
4
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EXHIBIT 5
FORM OF PROPOSED AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF RESORTS INTERNATIONAL, INC.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RESORTS INTERNATIONAL, INC.
We, Christopher D. Whitney, Executive Vice President and Secretary, and
Matthew B. Kearney, Executive Vice President and Treasurer, of Resorts
International, Inc., a corporation existing under the laws of the State of
Delaware (the "Corporation"), do hereby certify that:
ONE: The name of the Corporation is "Resorts International, Inc.",
which was formed under the name "Mary Carter Paint Co.".
TWO: The original Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of the State of Delaware on the
24th day of October, 1958.
THREE: Provision for the making of this Amended and Restated
Certificate of Incorporation is contained in an order of the United States
Bankruptcy Court for the District of Delaware (the "Court") in In Re Resorts
International, Inc., et al. Case Nos. 94-259 and 94-260.
FOUR: This Amended and Restated Certificate of Incorporation has been
duly executed and acknowledged by the officers of the Corporation so designated
in such order of the Court in accordance with Sections 242, 245 and 303 of the
General Corporation Law of the State of Delaware.
FIVE: The text of the Certificate of Incorporation of the Corporation
is hereby amended and restated, in its entirety, to read as follows:
ARTICLE I
NAME
The name of the Corporation is "Resorts International, Inc."
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ARTICLE II
ADDRESS
The address of the Corporation's registered office in the State of
Delaware is 229 South State Street, City of Dover, County of Kent, and the name
of its registered agent at such address is United States Corporation Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
CAPITALIZATION
A. Authorization; Transfer Restrictions. The total number of
shares of capital stock of all classifications which the Corporation shall have
authority to issue is 110,120,000, consisting of (i) 10,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"), and (ii)
100,120,000 shares of common stock, consisting of 100,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock"), and 120,000 shares of
Class B Redeemable Common Stock, par value $.01 per share (the "Class B
Stock", and collectively with the Common Stock, the "RII Common Stock"). Each
share of Class B Stock shall be issued in connection with and upon the issuance
of each $1,000 in principal amount of Junior Notes (as defined in Article IX
hereof), whether upon original issuance of the Junior Notes or upon surrender
for transfer or exchange of any outstanding Junior Notes or pursuant to the
interest payment provisions thereof, and may not be transferred separately from
such principal amount of Junior Notes.
The shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors hereby is vested with authority from time
to time to issue the Preferred Stock as Preferred Stock of any series. In
connection with the creation of each such series of Preferred Stock, the Board
of Directors hereby is vested with authority to fix by resolution or
resolutions the designations and the powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of such series, to the full extent now or
hereafter permitted by the laws of the State of Delaware, including without
limitation the dividend rate, conversion or
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exchange rights, redemption price and liquidating preference of any series of
Preferred Stock, and to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any such series (but not
below the number of shares thereof outstanding); provided, however, that no
shares of Preferred Stock may be designated or issued with any rights to vote
together with the holders of the Class B Stock for any purpose. In case the
number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution or resolutions originally fixing the number of
shares of such series.
B. Voting and Quorum.
1. Each holder of RII Common Stock entitled to vote
shall have one vote for each share thereof held. Except for the election of
Class B Directors (as defined in Article IX hereof), the holders of the Common
Stock shall be entitled to vote on all matters on which stockholders are
entitled to vote. Except as may be prescribed by Delaware law, the holders
of the Class B Stock shall not be entitled to vote on any matter except that
the holders of the Class B Stock are entitled to vote separately as a class on
the following matters: (a) the election of Class B Directors; (b) to the extent
required under Delaware law, any amendment to the last sentence of the first
paragraph of Paragraph (A) of Article IV hereof; the proviso in the second
paragraph of Paragraph (A) of Article IV hereof; Paragraphs (B)(1), (C)(2), (D)
or (E) of Article IV hereof; Paragraphs (A), (B)(3), (B)(4), (B)(6) or (E)(2)
of Article VII hereof; or Paragraph (A) of Article IX hereof; (c) any amendment
to the last sentence of Section 3 of Article II of the By-Laws of the
Corporation; (d) any amendment to the second sentence of Section 7 of Article
III of the By-Laws of the Corporation; or (e) any amendment to the last
sentence of Section 8 of Article III of the By-Laws of the Corporation.
2. At any meeting of the stockholders of the Corporation at which
the holders of any class of RII Common Stock are entitled to vote, the
presence, in person or by proxy, of the holders of a majority of the
outstanding shares of such class shall constitute a quorum of the class
entitled to vote of such class. No action may be taken by any class of RII
Common Stock at a meeting at which a quorum of such class is not present,
except a vote to adjourn such meeting.
C. Dividends.
1. The Board of Directors of the Corporation may cause
dividends to be paid to the holders of shares of Common Stock from time to
time out of funds legally available
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therefor. When and as dividends are declared, they may be payable in cash, in
property or in shares of Common Stock.
2. Holders of Class B Stock are not entitled to the
payment of dividends, except that in the event of an interest payment on the
Junior Notes which is paid in Additional Junior Notes (as defined in Article
IX hereof), holders shall be entitled to, and there shall be declared and paid,
a stock dividend such that one share of Class B Stock shall be issued in
respect of each $1,000 in principal amount of Additional Junior Notes.
D. Mandatory Redemption of Class B Stock. Upon the payment in
full of any Junior Note, or the redemption, or cancellation following purchase
thereof, of each $1,000 principal amount of Junior Notes, the Corporation shall
redeem the share of Class B Stock issued in respect of such Junior Note at a
redemption price of $.01 per share (adjusted to reflect stock splits and stock
combinations since the original date of issuance).
E. Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holders of RII Common Stock then outstanding shall be entitled to receive
ratably, in accordance with the number of shares held by each holder, out of
the assets of the Corporation legally available for distribution to its
stockholders, $.01 per share (adjusted to reflect stock splits and stock
combinations since the original date of issuance). After the payment in full
of the amount described in the immediately preceding sentence to the holders of
RII Common Stock, the holders of Common Stock shall be entitled to share
ratably, in accordance with the number of shares held by each holder, in all
the remaining assets of the Corporation available for distribution and the
holders of Class B Stock shall not be entitled to share in the distribution of
such remaining assets.
F. No Nonvoting Stock. No nonvoting equity securities of the
Corporation shall be issued. This provision is included in this Amended and
Restated Certificate of Incorporation in compliance with section l123 of the
United States Bankruptcy Code, 11 U.S.C. Section 1123, and shall have no
further force and effect beyond that required by said section and for so long
as said section is in effect and applicable to the Corporation.
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ARTICLE V
INDEMNIFICATION
A. Elimination of Certain Liability of Directors. A director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
except for liability (i) for any breach of the 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 a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is amended after the Effective Date (as
defined in Article IX 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 Delaware General Corporation Law, as so amended. Any
repeal or modification of this Section by the stockholders of the Corporation
shall be prospective only and shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
B. Actions, Suits or Proceedings Other than by or in the Right of
the Corporation. The Corporation shall indemnify 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 or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges, expenses (including attorneys fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, 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. 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.
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C. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify 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 he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of such action or suit and
any appeal therefrom, 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
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 of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court of
Chancery or such other court shall deem proper.
D. Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article V, to the extent
that a director or officer of the Corporation has been successful on the merits
or otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in Sections
A and B of this Article V, or in defense of any claim, issue or matter therein,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith.
E. Determination of Right to Indemnification. Any indemnification
under Sections A and B of this Article V (unless ordered by a court) shall be
paid by the Corporation unless a determination is made (i) by a majority of the
members of the Board of Directors who were not parties to such action, suit or
proceeding even if less than a quorum, or (ii) if such a majority of the
disinterested members of the Board of Directors so direct, by independent legal
counsel in a written opinion, or (iii) by the stockholders, that
indemnification of the director or officer is not proper in the circumstances
because he has not met the applicable
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standard of conduct set forth in Sections A and B of this Article V.
F. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to in
Sections A or B of this Article V in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding; provided, however, that the payment of such costs, charges and
expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified
by the Corporation as authorized in this Article V. Such costs, charges and
expenses (including attorneys fees) incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the majority of the Board
of Directors deems appropriate. The majority of the Board of Directors may, in
the manner set forth above, and upon approval of such director, officer,
employer, employee or agent of the Corporation, authorize the Corporation's
counsel to represent such person, in any action, suit or proceeding, whether or
not the Corporation is a party to such action, suit or proceeding.
G. Procedure for Indemnification. Any indemnification under
Sections B, C and D, or advance of costs, charges and expenses (including
attorneys' fees) under Section F of this Article V, shall be made promptly, and
in any event within 60 days, upon the written request of the director or
officer. The right to indemnification or advances as granted by this Article
Fifth shall be enforceable by the director or officer in any court of competent
jurisdiction, if the Corporation denies such request, in whole or in part, or
if no disposition thereof is made within 60 days. Such person's costs and
expenses (including attorneys' fees) incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense to
any such action that the claimant has not met the standard of conduct set forth
in Sections B or C of this Article V, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel and 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 has
met the applicable standard of conduct set forth in Sections B or C of this
Article V, nor the fact that there has been an
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actual determination by the Corporation (including its Board of Directors, its
independent legal counsel and 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.
H. Other Rights: Continuation of Right to Indemnification. The
indemnification provided by this Article V shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
office or while employed by or acting as agent for the Corporation, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. All rights to indemnification under this
Article V shall be deemed to be a contract between the Corporation and each
director, officer, employee or agent of the Corporation who serves or served in
such capacity at any time while this Article V is in effect. Any repeal or
modification of this Article V or any repeal or modification of relevant
provisions of the General Corporation Law of the State of Delaware or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director, officer, employee or agent or the obligations of the Corporation
arising hereunder. This Article V shall be binding upon any successor
corporation to this Corporation, whether by way of acquisition, merger,
consolidation or otherwise.
I. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become 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 or on his behalf
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 V, provided, however, that such insurance is
available on reasonable and acceptable terms, which determination shall be made
by a vote of a majority of the Board of Directors.
J. Savings Clause. If this Article V or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall
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nevertheless indemnify each director and officer of the Corporation, and (ii)
may nevertheless indemnify each employee and agent of the Corporation, as to
costs, charges and expenses (including attorneys' fees), judgments, fine and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action
by or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article V that shall not have been invalidated and
to the full extent permitted by applicable law.
K. Subsequent Amendment. No amendment, modification or repeal of
this Article V shall affect or impair in any way the rights of any director or
officer of the Corporation to indemnification under the provisions hereof with
respect to any action, suit or proceeding arising out of, or relating to, any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or appeal.
L. Subsequent Legislation. If the General Corporation Law of the
State of Delaware is amended to further expand the indemnification permitted to
directors, officers, employees or agents of the Corporation, then the
Corporation shall indemnify such persons to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
ARTICLE VI
NEW JERSEY CASINO CONTROL ACT
This Certificate of Incorporation shall be subject to the New Jersey
Casino Control Act, N.J.S.A. 5:12- 1et seq., and the rules and regulations of
the New Jersey Casino Control Commission (the "Commission") as they currently
exist or as they hereinafter may be amended (the "Act"), including without
limitation the following:
A. The securities of the Corporation shall always be subject to
redemption by the Corporation, by action of the Board of Directors, if, in the
judgment of the Board of Directors, such action should be taken, pursuant to
Section l51(b) of the General Corporation Law of Delaware or any other
applicable provision of law, to the extent necessary to prevent the loss or
secure the reinstatement of any government-issued license or franchise held by
the Corporation or any Subsidiary (as defined in Paragraph E of this Article
VI) to conduct any portion of the business of the Corporation or such
Subsidiary, which license or franchise is conditioned upon some or all of the
holders of the Corporation's securities possessing prescribed qualifications.
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In the event a holder of the Corporation's securities is found not to possess
such prescribed qualifications by the Commission pursuant to the Act (a
"Disqualified Holder"), such 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. Except as is otherwise expressly provided in instruments
containing the terms of the Corporation's securities, which instruments have
been approved by the Commission, so long as the Corporation shall remain a
publicly traded holding company as defined in the Act, in accordance with
N.J.S.A. 5:12-82(d)(7) and (9), all securities of the Corporation shall be held
subject to the condition that if a holder thereof is found to be a Disqualified
Holder, such holder shall dispose of his interest in the Corporation within 120
days following the Corporation's receipt of notice (the "Notice Date") of the
holder's disqualification. Promptly following its receipt of notice from the
Commission that a holder of securities of the Corporation has been found
disqualified, the Corporation shall either deliver such written notice
personally to the Disqualified Holder, mail it to such Disqualified Holder at
the address shown on the Corporation's books and records, or use any other
reasonable means. Failure of the Corporation to provide notice to a
Disqualified Holder after making reasonable efforts to do so shall not preclude
the Corporation from exercising its rights.
If any Disqualified Holder fails to dispose of his securities within
120 days following receipt by the Corporation of notice that such holder has
been found disqualified, the Corporation may redeem such securities at the
lesser of (i) the lowest closing sale price of such securities between the
Notice Date and the date l20 days after the Notice Date, or (ii) such holder's
original purchase price.
C. If the Corporation shall become, and so long as it shall
remain, a privately-held holding company as defined in the Act, in accordance
with N.J.S.A. 5:12-82(d)(7), (8) and (10), the Commission shall have the right
of prior approval with regard to transfers of securities, shares, and other
interests in the Corporation and the Corporation shall have the absolute right
to redeem at the market price or purchase price, whichever is the lesser, any
security, share or other interest in the Corporation in accordance with the
Act.
D. So long as the Corporation shall remain a holding company as
defined in the Act, in accordance with N.J.S.A. 5:12-105(e), commencing on the
date the Commission serves notice on the Corporation that a security holder has
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been found disqualified, it shall be unlawful for the Disqualified Holder to
(i) receive any dividends or interest upon any such securities of the
Corporation held by such holder; (ii) exercise, directly or through any trustee
or nominee, any right conferred by such securities; or (iii) receive any
remuneration in any form, for services rendered or otherwise, from any
subsidiary of the Corporation that holds a casino license.
E. For purpose of this Article VI, the term "Subsidiary" shall be
defined in accordance with N.J.S.A. 5:12-47.
ARTICLE VII
BOARD OF DIRECTORS
A. Number and Designations of Directors. Until such time as a
Class B Triggering Event (as defined in Article IX hereof) shall have occurred,
the number of directors which shall constitute the Board as of the Effective
Date (as defined in Article IX hereof) shall be six, consisting of four Common
Stock Directors (as defined in Article IX hereof) and two Class B Directors
(but subject to Paragraph F below). After the Effective Date, the number of
directors which shall constitute the whole Board may be increased or decreased
to such other number as from time to time shall be fixed by resolution of the
Board; provided, however, that at all times the number of Class B Directors
prior to the occurrence of a Class B Triggering Event shall be one-third
(rounded up to the nearest whole number) of the number of directors which
constitutes the entire Board (but subject to Paragraph F below). Upon the
occurrence of a Class B Triggering Event, the number of directors which shall
constitute the Board shall be increased, with such vacancies created thereby
filled by the vote of a majority of the Class B Directors then in office, such
that the number of Class B Directors equals a majority of the number of
directors which constitutes the entire Board after giving effect to the
creation of such vacancies (but subject to Paragraph F below).
B. Election of Directors.
1. Election of directors need not be by written ballot
unless the By-Laws so provide.
2. The Board of Directors shall be divided into three
classes: Class I, Class II, and Class III. Such Classes shall be as nearly
equal in number of directors as possible. Each director shall serve for a
term ending at the third annual stockholders' meeting following the annual
meeting at which such director was elected; provided, however,
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that the directors first appointed to Class I shall serve for a term ending at
the annual meeting to be held in 1995, the directors first appointed to Class
II shall serve for a term ending at the annual meeting to be held in 1996, and
the directors first appointed to Class III shall serve for a term ending at the
annual meeting to be held in 1997. Notwithstanding any of the foregoing
provisions of this Article VII and subject to Paragraph F below, each director
shall serve until his successor is elected and qualified or until his earlier
death, resignation or removal.
3. At each annual meeting of stockholders (which shall be
held on such date as shall be determined pursuant to the By-Laws of the
Corporation), or at any duly called special meeting of stockholders, the Common
Stock Directors to be elected shall be elected by the holders of the Common
Stock voting as a separate class and the Class B Director(s) to be elected
shall be elected by the holders of the Class B Stock voting as a separate
class.
4. At each annual election, the directors chosen to
succeed those whose terms then expire shall be identified as being the same
Class as the directors they succeed, unless, by reason of any intervening
changes in the authorized number of directors, the Board of Directors shall
designate one or more directorships whose term then expires as directorships of
another Class in order to more nearly achieve equality in the number of
directors among the Classes. When the directors fill a vacancy resulting from
the death, resignation or removal of a director in accordance with paragraph E
below, the director chosen to fill that vacancy shall be of the same Class as
the director he succeeds.
5. Notwithstanding the rule that the three Classes shall
be as nearly equal in number of directors as possible, in the event of any
change in the authorized number of directors, each Common Stock Director
and each Class B director then continuing to serve as such will nevertheless
continue as a director of the Class of which such director is a member until
the expiration of his current term or his earlier death, resignation or
removal.
C. Effective Date Board. As of the Effective Date, the Board of
Directors of the Corporation shall be reconstituted to consist of the following
persons in the Classes and of the designations indicated:
<TABLE>
<CAPTION>
Director Class Designation
-------- ----- -----------
<S> <C> <C>
Thomas E. Gallagher I Common Stock Director
Jay M. Green I Common Stock Director
</TABLE>
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<TABLE>
<S> <C> <C>
William Fallon II Common Stock Director
Vincent J. Naimoli II Class B Director
Merv Griffin III Common Stock Director
Charles Masson III Class B Director
</TABLE>
D. Removal of Directors. Subject to Paragraph F below, any
director, may be removed from office at any time, but only (i) for cause, and
(ii) by the affirmative vote of the holders of 80% of the voting power of all
the shares of the class of stock which elected such director.
E. Filling of Vacancies.
1. Any vacancy among the Common Stock Directors, occurring
from any cause whatsoever, may be filled by a majority of the remaining Common
Stock Directors, even if such remaining Common Stock Directors do not
constitute a quorum; provided, however, that the holders of the Common Stock
removing any Common Stock Director may at the same meeting fill the vacancy
caused by such removal; provided further, however, that if the remaining
Common Stock Directors fail to fill any such vacancy, the holders of the Common
Stock entitled to vote thereon may fill such vacancy at any special meeting of
stockholders called for that purpose. Any person elected or appointed to fill
a vacancy shall hold office, subject to the right of removal as herein before
provided, until the next election for such Class of directors and until his
successor is elected and qualifies.
2. Subject to Paragraph F below, any vacancy among the Class B
Directors, occurring from any cause whatsoever (including (i) as a result of an
increase in the number of directors which shall constitute the entire Board, or
(ii) as a result of the occurrence of a Class B Triggering Event), may be filled
only by a majority of the remaining Class B Directors, even if such remaining
Class B Directors do not constitute a quorum; provided, however, that the
holders of the Class B Stock removing any Class B Director may at the same
meeting fill the vacancy caused by such removal; provided further, however, that
if the remaining Class B Directors fail to fill any such vacancy, the holders of
the Class B Stock entitled to vote thereon may fill such vacancy at any special
meeting of stockholders called for that purpose. Any person elected or appointed
to fill a vacancy shall hold office, subject to the right of removal as herein
before provided, until the next election for such Class of directors and until
his successor is elected and qualifies.
F. Final Payment Date. After the Final Payment Date (as defined in
Article IX hereof), (i) all the Class B
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Directors then in office shall resign and if such Class B Directors fail to
resign, a majority of the Common Stock Directors shall be entitled to remove,
without cause, such Class B Directors then in office, and (ii) the number of
directors constituting the Board shall be decreased to six directors, who shall
be elected by the holders of Common Stock.
ARTICLE VIII
AMENDMENT OF CERTIFICATE OF INCORPORATION AND BY-LAWS
A. In addition to any affirmative vote required by applicable law,
any alteration, amendment, repeal or rescission of any provision of this Amended
and Restated Certificate of Incorporation must be approved by a majority of the
directors of the Corporation then in office and by the affirmative vote of the
holders of a majority of the outstanding shares of the Common Stock.
B. Except as provided in Paragraph (B)(1) of Article IV hereof, the
Board of Directors shall have the power without the assent or vote of the
stockholders to make, alter, amend, change, add to or repeal the By-Laws of
the Corporation.
ARTICLE IX
DEFINITIONS
A. As used in this Amended and Restated Certificate of
Incorporation, the following terms shall have the meanings indicated below:
"Additional Junior Notes" shall mean Junior Notes issued by RIHF in
payment of interest on outstanding Junior Notes, in accordance with the terms of
the Junior Notes and the New RIHF Second Mortgage Junior Note Indenture.
"Class B Directors" shall mean the directors of the Corporation elected
by the holders of the Class B Stock.
"Class B Triggering Event" shall mean either (i) the payment on any
Interest Payment Date by RIHF of interest on the Junior Notes in the form of
Additional Junior Notes or (ii) the failure on any Interest Payment Date by RIHF
to pay interest in full on the Junior Mortgage Notes, if, in either case, on any
prior six Interest Payment Dates (whether consecutive or non- consecutive),
interest on the Junior Notes either has been paid in Additional Junior Notes or
has not been paid in full.
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"Final Payment Date" means the date on which all the Junior Notes are
retired, redeemed or paid in full.
"Interest Payment Date" shall mean each date on which interest is due
and payable on the Junior Notes, in accordance with the New RIHF Second Mortgage
Junior Note Indenture.
"Junior Notes" shall mean the 11.375% Junior Mortgage Junior Notes due
2004 of RIHF, including the Additional Junior Notes.
"New RIHF Second Mortgage Junior Note Indenture" shall mean the
Indenture dated as of May 3, 1994, between RIHF and U.S. Trust Company of
California, N.A., as Trustee, under which the Junior Notes have been or will be
issued.
"RIHF" shall mean Resorts International Hotel Finance, Inc., a Delaware
Corporation.
B. As used in this Amended and Restated Certificate of
Incorporation, the following terms shall have the meanings indicated below:
"Common Stock Directors" shall mean the directors of the Corporation
elected by the holders of the Common Stock.
"Effective Date" shall mean May 3, 1994.
"Plan" shall mean the Plan of Reorganization of the Corporation, dated
March 21, 1994.
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IN WITNESS WHEREOF, the undersigned have signed this Certificate of
Incorporation, under penalties of perjury, and caused the corporate seal of the
Corporation to be hereunto affixed this -- day of -----------, 1994.
By:
-------------------------------
Christopher D. Whitney
Executive Vice President
and Chief of Staff
By: -------------------------------
Matthew B. Kearney Executive
Vice President-Finance
and Treasurer
[Corporate Seal]
Attest:
By:
--------------------
Williams C. Murtha
Assistant Secretary
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