Restated Certificate of Incorporation
of
GB Holdings, Inc.
The undersigned officer of GB Holdings, Inc., a corporation organized
and existing under the laws of the State of Delaware, does hereby certify as
follows:
A. The name of the corporation (hereinafter called the "Corporation")
is GB Holdings, Inc. The date of filing of the original certificate of
incorporation of the Corporation with the Secretary of State of the State of
Delaware is September 29, 1993.
B. The amendment and the restatement of the certificate of
incorporation of the Corporation has been duly adopted in accordance with the
provisions of Sections 242, 245 and 303 of the General Corporation Law of the
State of Delaware and the certificate of incorporation is hereby amended,
restated and integrated in its entirety as follows:
FIRST. The name of this corporation shall be: GB Holdings, Inc. (the
"Corporation").
SECOND. The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington 19805, County of New Castle; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD. The purpose or purposes of the Corporation shall be:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares which the Corporation shall have
authority to issue is 25,000,000, consisting of 20,000,000 shares of common
stock, all of a par value of one cent ($.01) each ("Common Stock"), and
5,000,000 shares of preferred stock, all of a par value of one cent ($.01) each
("Preferred Stock"). The voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, in respect of the classes of stock of the
Corporation are as follows:
(a) Preferred Stock
(A) The Preferred Stock of the Corporation may be issued from time
to time in one or more series of any number of shares,
provided that the aggregate number of shares
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issued and not canceled in any and all such series shall not
exceed the total number of shares of preferred stock
hereinabove authorized.
(B) Authority is hereby vested in the Board of Directors from time
to time to authorize the issuance of one or more series of
preferred stock and, in connection with the creation of such
series, to fix by resolution or resolutions providing for the
issuance of shares thereof the characteristics of each such
series including, without limitation, the following:
(1) the maximum number of shares to constitute such
series, which may subsequently be increased or
decreased (but not below the number of shares of that
series then outstanding) by resolution of the Board
of Directors, the distinctive designation thereof and
the stated value thereof if different than the par
value thereof;
(2) whether the shares of such series shall have voting
powers, full or limited, or no voting powers, and if
any, the terms of such voting powers;
(3) the dividend rate, if any, on the shares of such
series, the conditions and dates upon which such
dividends shall be payable, the preference or
relation which such dividends shall bear to the
dividends payable on any other class or classes or on
any other series of capital stock and whether such
dividend shall be cumulative or noncumulative;
(4) whether the shares of such series shall be subject to
redemption by the Corporation, and, if made subject
to redemption, the times, prices and other terms,
limitations, restrictions or conditions of such
redemption;
(5) the relative amounts, and the relative rights or
preference, if any, of payment in respect of shares
of such series, which the holders of shares of such
series shall be entitled to receive upon the
liquidation, dissolution or winding-up of the
Corporation;
(6) whether or not the shares of such series shall be
subject to the operation of a retirement or sinking
fund and, if so, the extent to and manner in which
any such retirement or sinking fund shall be applied
to the purchase or redemption of the shares of such
series for retirement or to other corporate purposes
and the terms and provisions relative to the
operation thereof;
(7) whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of any
other class, classes or series, or other securities,
whether or not issued by the Corporation, and if so
convertible or exchangeable, the price or prices or
the rate or rates of conversion or exchange and the
method, if any, of adjusting same;
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(8) the limitations and restrictions, if any, to be
effective while any shares of such series are
outstanding upon the payment of dividends or the
making of other distributions on, and upon the
purchase, redemption or other acquisition by the
Corporation of, the Common Stock (as defined below)
or any other class or classes of stock of the
Corporation ranking junior to the shares of such
series either as to dividends or upon liquidation,
dissolution or winding- up;
(9) the conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon
the issuance of any additional stock (including
additional shares of such series or of any other
series or of any other class) ranking on a parity
with or prior to the shares of such series as to
dividends or distributions of assets upon
liquidation, dissolution or winding-up; and
(10) any other preference and relative, participating,
optional or other special rights, and the
qualifications, limitations or restrictions thereof,
as shall not be inconsistent with law, this ARTICLE
FOURTH or any resolution of the Board of Directors
pursuant hereto.
(b) Common Stock
(A) The Common Stock of the Corporation may be issued from time to
time in any number of shares, provided that the aggregate
number of shares issued and not canceled shall not exceed the
total number of shares of Common Stock hereinabove authorized.
(B) Unless expressly provided by the Board of Directors of the
Corporation in fixing the voting rights of any series of
Preferred Stock, the holders of the outstanding shares of
Common Stock shall exclusively possess all voting power for
the election of directors and for all other purposes, each
holder of record of shares of Common Stock being entitled to
one vote for each share of such stock standing in his name on
the books of the Corporation.
(C) Subject to the prior rights of the holders of Preferred Stock
now or hereafter granted pursuant to this ARTICLE FOURTH, the
holders of Common Stock shall be entitled to receive, when and
as declared by the Board of Directors, out of funds legally
available for that purpose, dividends payable either in cash,
stock or otherwise.
(D) In the event of any liquidation, dissolution or winding-up of
the Corporation, either voluntary or involuntary, after
payment shall have been made in full to the holders of
Preferred Stock of any amounts to which they may be entitled
and subject to the rights of the holders of Preferred Stock
now or hereafter granted pursuant to this ARTICLE FOURTH, the
holders of Common Stock shall be entitled, to the exclusion of
the holders of Preferred Stock of any and all series, to
share, ratably
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accordingly to the number of shares of Common Stock held by
them, in all remaining assets of the Corporation available for
distribution to its stockholders.
FIFTH. The Board of Directors shall have the power to adopt, amend or
repeal the by-laws.
SIXTH. No director shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law, (i) for 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) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this ARTICLE SIXTH shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
SEVENTH. The corporation shall, to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said Section from and against any and all of the expenses,
liabilities or other matters referred to or covered by said Section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-Law, 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, 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 heirs,
executors and administrators of such a person.
EIGHTH. All securities (as defined by the New Jersey Casino Control Act
(the "Act")) of the Corporation are held subject to the condition that, if a
holder thereof is found to be disqualified by the New Jersey Casino Control
Commission pursuant to the provisions of the Act, such holder shall (a) dispose
of his or her interest in the Corporation; (b) not receive any dividends or
interest upon any such securities; (c) not exercise, directly or through any
trustee or nominee, any voting right conferred by such securities; and (d) not
receive any remuneration in any form from the casino licensee for services
rendered or otherwise. If any unsuitable or disqualified holder fails to dispose
of his securities within 180 days following such disqualification, (i) such
securities shall be subject to 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 151(b) of the General Corporation Law of
Delaware, 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 thereof 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, and (ii) such unsuitable or disqualified holder shall
indemnify the Corporation for any and all direct or indirect costs, including
attorneys' fees, incurred by the Corporation as a result of such holder's
continuing ownership or failure to divest promptly. The redemption price for all
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securities to be redeemed by the Corporation pursuant to this ARTICLE EIGHTH
shall be the par value per share thereof.
NINTH The Corporation shall not create, designate, authorize or
cause to be issued any class or series of nonvoting stock.
TENTH. The corporation elects not to be governed by the Takeover
Statute (Section 203 of the General Corporation Law of the State of Delaware).
IN WITNESS WHEREOF, the undersigned has executed, signed and
acknowledged this restated certificate of incorporation this 29th day of
September, 2000.
By: /s/ Frederick H. Kraus
Name: Frederick H. Kraus
Title: Executive Vice President
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