FORM OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF HEMMETER ENTERPRISES, INC.
The undersigned, being the duly elected President and
Secretary of Hemmeter Enterprises, Inc., a Delaware corporation
(the "Corporation"), hereby certify as follows:
The original Certificate of Incorporation of the
Corporation was filed with the Office of the Secretary of State
of Delaware on August 30, 1993. The original name of the
Corporation was Bullwhackers, Inc. A First Amendment to the
Certificate of Incorporation which, among other things, changed
the name of the Corporation to Hemmeter Enterprises, Inc., was
approved by the board of directors and shareholders of the
Corporation on December 13, 1993, and was incorporated in an
Amended and Restated Certificate of Incorporation which was filed
with the Secretary of State of Delaware on December 15, 1993.
On November 7, 1995, the Corporation filed a petition
in the United States Bankruptcy Court seeking relief under
Chapter 11 of the United States Bankruptcy Code, 11 U.S.C.
Section 101 et seq.
On _______________, 1996, the United States Bankruptcy
Court for the Eastern District of Louisiana confirmed a plan of
reorganization (the "Plan of Reorganization") of the Corporation
which adopted this Amended and Restated Certificate of
Incorporation pursuant to Section 303 of the General Corporation
Law of the State of Delaware (the "DGCL").
Pursuant to and in accordance with Section 103 and 303
of the DGCL, the Certificate of Incorporation of the Corporation,
as previously amended and restated, is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is Colorado Gaming &
Entertainment Co.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation
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.
ARTICLE III
PURPOSE
The Corporation is organized for the purpose of
engaging in any lawful act or activity for which corporations may
be organized under the DGCL.
ARTICLE IV
DESCRIPTION OF CAPITAL STOCK
A. Authorized Classes and Numbers of Shares. The aggregate
number of shares which the Corporation shall have authority
to issue is 20,000,000 shares of Common Stock, par value
$.01 per share (hereinafter called the "Common Stock").
B. Dividends. Such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors
may be declared and paid on the Common Stock from time to
time from any funds, property or shares legally available
therefor.
C. Voting Rights. Each outstanding share of Common Stock shall
be entitled to one vote on each matter submitted to a vote
of holders of Common Stock at a meeting of stockholders.
Cumulative voting for the election of directors of the
Corporation shall not be permitted.
D. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of Common Stock shall be
entitled to share ratably in the net balance of any assets
of the Corporation.
E. No Preemptive Rights. No holder of Common Stock shall be
entitled as such, as a matter of right, to subscribe for or
purchase or receive any new or additional issue of stock of
the Corporation, or securities convertible into stock of the
Corporation, whether now or hereafter authorized, or whether
issued for cash, property or services, by way of dividend,
or in exchange for the stock of another corporation.
ARTICLE V
BOARD OF DIRECTORS
A. Powers. The business and affairs of the Corporation shall
be managed by, or under the direction of, a Board of
Directors, which shall exercise all of the powers of the
Corporation except as are by law or by this Amended and
Restated Certificate of Incorporation or the Amended and
Restated Bylaws of the Corporation (the "Bylaws") conferred
upon or reserved to the stockholders of the Corporation.
B. Number, Tenure and Qualifications of Directors.
(1) Number of Directors. Subject to the right of the Board
of Directors to increase or decrease the number of
directors pursuant to this Section B(1), the Board of
Directors shall consist of five (5) directors. The
Board of Directors may increase or decrease the number
of directors by the affirmative vote of a majority of
the entire Board of Directors; provided, however, that
the Board of Directors shall at all times consist of a
maximum of seven (7) and a minimum of three (3)
directors.
(2) Terms of Directors. The Initial Directors (as defined
below) shall serve for a term expiring on the later of
the date of the first annual meeting of stockholders
following the Effective Date or the date of the
qualification of their successors pursuant to Section
B(4) of this Section V. Thereafter, directors shall
serve for one year terms expiring on the later of the
date of the first annual meeting of stockholders
following the annual meeting at which such directors
were elected or the date of the qualification of their
successors pursuant to Section B(4) of this Article V.
(3) Removal of Directors. Any director, or the entire
Board of Directors, may be removed from office with or
without cause by the affirmative vote of not less than
a majority of the votes entitled to be cast by the
holders of all the then outstanding shares of Common
Stock of the Corporation at a special meeting of the
stockholders called for such purpose.
(4) Qualification of Directors. Before any individual
elected to serve as a director of the Corporation,
including the Initial Directors, shall be eligible to
serve, such individual shall receive any necessary
approvals or licenses from any Gaming Authority (as
hereinafter defined) with jurisdiction over the
Corporation or any of its subsidiaries and shall
otherwise meet the requirements of any applicable laws,
regulations or rules governing the conduct of the
Corporation's gaming businesses.
(5) Initial Directors. Pursuant to the Plan of
Reorganization, the following individuals shall be the
initial directors of the Corporation (the "Initial
Directors") and with terms commencing on the earlier of
the Effective Date or the date such individuals (other
than Stephen J. Szapor, Jr., who is already qualified)
are qualified to serve as directors pursuant to Section
B(4) of this Article V:
Thomas Thorsen
Stephen J. Szapor, Jr.
Franklin S. Wimer
Steve Leonard
Mark Van Hartesvelt
Until such time as two of the Initial Directors other than
Stephen J. Szapor, Jr., are qualified to serve as directors
pursuant to Section B(4) of this Article V, Alan L. Mayer
and Richard Rabin shall serve as directors but shall be
deemed to have resigned upon the qualification of such
Initial Directors.
C. Additional Authority of Board. In furtherance and not in
limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation. The holders of shares
of Common Stock shall, to the extent such power is at the
time conferred on them by applicable law, also have the
power to make, alter, amend or repeal the Bylaws of the
Corporation.
D. Nomination and Election of Directors. Nominations for the
election of directors shall be made by a majority of the
Board of Directors. In addition, any stockholder entitled
to vote in the election of directors generally may nominate
one or more persons for election as directors at an annual
meeting of stockholders, but only if written notice of such
stockholder's intent to make such nomination or nominations
has been received by the Secretary of the Corporation not
less than ten days prior to the date of such annual meeting
of stockholders. Each such notice by a stockholder shall
set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons
to be nominated; (b) a representation that the stockholder
is a holder of record of Common Stock entitled to vote at
such meeting and intends to appear in person or by proxy at
a meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or
understandings between the stockholder or any affiliate of
the stockholder and each nominee and any other person or
persons (naming such person or persons) relating to the
nomination or nominations; (d) the number of shares of the
Corporation which are beneficially owned by such stockholder
and the person to be nominated as of the date of such
stockholder's notice and by any other stockholders known by
such stockholder to be supporting such nominees as of the
date of such stockholder's notice; (e) such other
information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (f) the written
consent of each nominee to serve as a director of the
Corporation if so elected. The stockholder shall also
comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder, with respect to the
matters set forth in this Article V, Section D.
In addition, in the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or
more directors, any stockholder entitled to vote in the
election of directors generally may nominate one or more
persons for election as directors at a special meeting only
if written notice of such stockholder's intent to make such
nomination or nominations, setting forth the information and
complying with the form described in the immediately
preceding paragraph, has been received by the Secretary of
the Corporation not later than the close of business on the
tenth day prior to such special meeting. The stockholder
shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Article V, Section
D.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the
procedures set forth in this Article V, Section D. The
presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures
prescribed by this Article V, Section D, and if he or she
should so determine, the defective nomination shall be
disregarded.
Elections of directors shall be by written ballot.
ARTICLE VI
STOCKHOLDERS
A. Meetings of Stockholders; Books. Meetings of the
stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Any action required or
permitted to be taken by the stockholders of the Corporation
may be effected at a duly called annual or special meeting
of such stockholders. Special meetings of the stockholders
of the Corporation may be called only by the President of
the Corporation or by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of
Directors or by the holders of at least 25% of the votes
entitled to be cast by the then outstanding shares of Common
Stock of the Corporation at such meeting. The books of the
Corporation may be kept (subject to any provision of law)
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 Bylaws of the Corporation.
B. Proposals of Stockholders. At any meeting of the
stockholders, only such business shall be conducted as shall
have been properly brought before such meeting. To be
properly brought before an annual meeting of stockholders,
business must be (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors
or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must
be received no less than ten days prior to the annual
meeting of stockholders. Each such notice shall set forth
as to each matter the stockholder proposes to bring before
the annual meeting of stockholders: (a) a brief description
of the business desired to be brought before the annual
meeting of stockholders and the reasons for conducting such
business at such meeting, (b) the name and address, as they
appear on the Corporation's books, of the stockholder
proposing such business, (c) the class, series and number of
shares of the Corporation which are beneficially owned by
the stockholder, and (d) any material interest of the
stockholder or any Affiliate of the stockholder in such
business. The stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this Article VI, Section B. To be properly brought
before a special meeting, business must be (a) specified in
the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors or by the
stockholders calling such special meeting or (b) otherwise
properly brought before the meeting by or at the direction
of the Board of Directors.
No business shall be conducted at any meeting of the
stockholders except in accordance with the procedures set
forth in this Article VI, Section B. The presiding officer
of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly
brought before the meeting and in accordance with the
provisions of this Article VI, Section B, and if he or she
should so determine, any such business not properly brought
before the meeting shall not be transacted. Nothing herein
shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or
any successor provision.
C. Stockholder Action. Any action which may be taken by the
stockholders at any annual or special meeting of the
stockholders of the Corporation may be taken without a
meeting, without prior notice (including, without
limitation, any notice required to be given pursuant to
Section B of this Article VI if such action were taken at
any annual or special meeting of stockholders) and without a
vote of stockholders, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered
office, its principal place of business, or any officer or
agent of the Corporation having custody of the books in
which proceedings of the meetings of stockholders are
recorded.
ARTICLE VII
BUSINESS TRANSACTIONS
The Corporation hereby elects not to be governed by the
provisions of Section 203 of the DGCL (or any successor statute)
relating to business combinations with interested stockholders as
defined in such statute.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended and
Restated 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;
provided, however, notwithstanding any other provisions of this
Amended and Restated Certificate of Incorporation or the Bylaws
of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Amended and Restated
Certificate of Incorporation or the Bylaws of the Corporation),
any lawful amendment of this Amended and Restated Certificate of
Incorporation may be made by affirmative vote by at least a
majority of the aggregate number of votes which the holders of
the then outstanding shares of Common Stock are entitled to cast
on the amendment.
ARTICLE IX
LIMITATION ON DIRECTOR LIABILITY AND
INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. Limited Liability. A person who is or was 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
(a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or
a knowing violation of law, (c) under Section 174 of the
DGCL, or (d) for any transaction from which the director
derived an improper personal benefit. If the DGCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the
liability of the directors of the Corporation shall be
eliminated or limited to the fullest extent permitted by the
DGCL, as so amended. The elimination and limitation of
liability provided herein shall continue after a director
has ceased to occupy such position as to acts or omissions
occurring during such director's term or terms of office,
and no amendment, repeal or modification of this Article IX
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, repeal or modification.
B. Right to Indemnification.
(1) Each 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 (hereinafter a
"proceeding"), by reason of the fact that he or she, or
the person of whom he or she is the legal
representative, is or was a director or officer of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint
venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the
basis of such proceeding is alleged action or inaction
in an official capacity as a director, officer,
employee or agent or in any other capacity while
serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corpo-
ration to the fullest extent authorized by the DGCL, as
the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide
broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment),
against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settle-
ment) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall
continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and
administrators; provided, however, that, except as
provided in this Article IX, Section B, the Corporation
shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof)
initiated by such person only as authorized in the
specific case upon a determination that indemnification
of the director, officer, employee or agent is proper
in the circumstances because he or she has met the
applicable standard set forth in the DGCL. Such a
determination shall be made (a) by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding; (b) if such a quorum is not obtainable, or,
even if obtainable and a quorum of disinterested
directors so directs, by independent legal counsel
(compensated by the Corporation) in a written opinion;
(c) by the stockholders; or (d) in any other manner
permitted by the DGCL. The right to indemnification
conferred in this Article IX, Section B, shall be a
contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending
any such proceeding in advance of its final disposi-
tion; provided, however, that, if the DGCL requires,
the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer
of the Corporation (and not in any other capacity in
which service was or is rendered by such person while a
director or officer, including, without limitation,
service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only
upon delivery to the Corporation of an undertaking, by
or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be
determined that such director or officer is not
entitled to be indemnified under this Section B or
otherwise. The Corporation may, by action of its Board
of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and
effect as the foregoing indemnification of directors
and officers.
(2) If a claim under paragraph (1) of this Section B is not
paid in full by the Corporation within 30 days after a
written claim has been received 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
the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not
met the standard of conduct which makes it permissible
under the DGCL 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, independent 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 DGCL, nor an actual determination by the
Corporation (including its Board of Directors,
independent 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. In any suit brought by
the claimant to enforce a right to indemnification or
to an advancement of expenses hereunder, or brought by
the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of
proving that the claimant is not entitled to be
indemnified, or to such advancement of expenses, under
this Article IX or otherwise shall be on the
Corporation.
(3) The rights to indemnification and the payment of
expenses incurred in defending a proceeding in advance
of its final disposition conferred in this Article IX,
Section B, shall not be exclusive of any other right
which any person may have or hereafter acquire under
any statute, provision of this Amended and Restated
Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
(4) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee
or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify
such person against such expense, liability or loss
under the DGCL.
(5) The Corporation may enter into an indemnity agreement
with any director, officer, employee or agent of the
Corporation, or of another corporation, partnership,
joint venture, trust or other enterprise, upon terms
and conditions that the Board of Directors deems
appropriate, as long as the provisions of the agreement
are not impermissible under applicable law.
(6) Any amendment or repeal of this Article IX, Section B,
shall not be retroactive in effect.
(7) In case any provision in this Article IX, Section B,
shall be determined at any time to be unenforceable in
any respect, the other provisions shall not in any way
be affected or impaired thereby, and the affected
provision shall be given the fullest possible
enforcement in the circumstances, it being the
intention of the Corporation to afford indemnification
and advancement of expenses to the persons indemnified
hereby to the fullest extent permitted by law.
(8) The Corporation may, by action of the Board of
Directors, authorize one or more officers to grant
rights to indemnification and advancement of expenses
to employees or agents of the Corporation on such terms
and conditions as such officer or officers deem
appropriate under the circumstances.
ARTICLE X
REGULATORY MATTERS
In order to enable the Corporation and any subsidiary to
secure and maintain in good standing all license and other
regulatory approvals necessary for the lawful operation of gaming
and related businesses now or hereafter engaged in by the
Corporation or any subsidiary of the Corporation (the "Gaming
License") from the Gaming Authority (as defined below), and in
order to insure that the business of the Corporation and its
subsidiaries will be carried on in compliance with the laws,
rules, regulations and policies of the Gaming Authorities and in
a manner consonant with the responsibilities of the Corporation
and its subsidiaries to the public as an organization engaged in
gaming and related businesses, the following provisions are made:
A. The Corporation shall not issue any voting securities
or other voting interests except in accordance with the
provisions of the Colorado Limited Gaming Act and any
other applicable Gaming Laws and the rules and
regulations promulgated thereunder. The issuance of
any voting securities or other voting interests in
violation thereof shall be void and such voting
securities or other voting interests shall be deemed
not to be issued and outstanding until (a) the
Corporation shall cease to be subject to the
jurisdiction of the Colorado Limited Gaming Control
Commission or any other Gaming Authority authorized or
empowered to enforce any other applicable Gaming Laws,
or (b) the Colorado Limited Gaming Control Commission
or any such other Gaming Authority shall, by
affirmative action, validate said issuance or waive any
defect in issuance.
B. No voting securities or other voting interests issued
by the Corporation and no interest, claim or charge
therein or thereto shall be transferred in any manner
whatsoever except in accordance with the provisions of
the Colorado Limited Gaming Act and all other
applicable Gaming Laws and the rules and regulations
promulgated thereunder. Any transfer in violation
thereof shall be void until (a) the Corporation shall
cease to be subject to the jurisdiction of the Colorado
Limited Gaming Control Commission or any other Gaming
Authority authorized or empowered to enforce any other
applicable Gaming Laws, or (b) the Colorado Limited
Gaming Control Commission or any such other Gaming
Authority shall, by affirmative action, validate said
transfer or waive any defect in said transfer.
C. If the Colorado Limited Gaming Control Commission or
any other Gaming Authority with jurisdiction at any
time determines that a holder of voting securities or
other voting interests of the Corporation is unsuitable
to hold such securities or other voting interests, then
the Corporation may, within sixty (60) days after the
finding of unsuitability, purchase such voting
securities or other voting interests of such unsuitable
person at the lesser of (i) the cash equivalent of such
person's investment in the Corporation, or (ii) the
current market price as of the date of the finding of
unsuitability unless such voting securities or other
voting interests are transferred to a suitable person
(as determined by the Colorado Limited Gaming Control
Commission or such other Gaming Authority) within sixty
(60) days after the finding of unsuitability. Until
such voting securities or other voting interests are
owned by persons found by the Colorado Limited Gaming
Control Commission or such other Gaming Authority to be
suitable to own them, (a) the Corporation shall not be
required or permitted to pay any dividend or interest
with regard to the voting securities or other voting
interests, (b) the holder of such voting securities or
other voting interests shall not be entitled to vote on
any matter as the holder of the voting securities or
other voting interests, and such voting securities or
other voting interests shall not for any purposes be
included in the voting securities or other voting
interests of the Corporation entitled to vote, and
(c) the Corporation shall not pay any remuneration in
any form to the holder of the voting securities or
other voting interests except in exchange for such
voting securities or other voting interests as provided
in this Article X, Section (c).
D. The following definitions shall apply with respect to
this Article X:
"Gaming Authority" means any governmental agency other
than the Colorado Limited Gaming Control Commission
having the authority to issue or grant any license
necessary for the lawful operation of gaming and
related businesses of the Corporation or any subsidiary
of the Corporation.
"Gaming Law" means each gaming law of any Gaming
Authority and any rules or regulations promulgated
thereunder to the extent applicable to the Corporation
or any of its subsidiaries or shareholders.
IN WITNESS WHEREOF, the Corporation has caused this
Amended and Restated Certificate of Incorporation to be executed
in its corporate name this day of _________, 1996.
HEMMETER ENTERPRISES, INC.
By:
President
Secretary