Exhibit 3.3
FILED
DONETTA DAVIDSON
COLORADO SECRETARY OF STATE
20011079684 C
$ 100.00
SECRETARY OF STATE
04-18-2001 11:21:57
ARTICLES OF INCORPORATION form 7.102.102.1 revised 11/13/2000
Filing fee: $50.00 This document must be typed or machine printed.
If more space is required, continue on attached 8 1/2" x 11" sheet(s).
Deliver 2 copies to: Colorado Secretary of State, Business Division.
1560 Broadway, Suite 200, Denver, CO 80202-5169
Please include a typed or machine printed, self-addressed, envelope.
For filing requirements, see Sections 7-90-301 and 7-102-102, Colorado Revised
Statutes
For more information, see the Citizen's Guide to the Business Division on our
Web site, http://www.sos.state.co.us Questions? Contact the Business Division:
voice 303 894 2251, fax 303 894 2242 or e-mail sos.business@state.co.us
The undersigned, acting as the incorporator of a corporation for profit pursuant
to Section 7-102-102, Colorado Revised Statutes (C.R.S.), delivers these
Articles of Incorporation to the Colorado Secretary of State for filing, and
states as follows:
1. The entity name of the corporation is: BH Acquisition Corp.
The entity name of a corporation must contain the term "corporation",
"incorporated", "company", or "limited", or an abbreviation of any of these
terms Section 7-90-601(3)(a), C.R.S.
2. The total number of shares that the corporation is authorized to issue is
1,000 shares of common stock.
3. The street address of the corporation's initial registered office and the
name of its initial registered agent at that office are: Street Address (must be
a street or other physical address in Colorado) 1675 Broadway, Denver, Colorado
80202
If mail is undeliverable to this address, ALSO include a post office box
address: ; Name The Corporation Company
------------------------------------
4. The address of the corporation's initial principal office is:
240 Main Street, Black Hawk, Colorado 80422
5. The name and address of the incorporator is:
Name: Emanuel J. Cotronakis
Address: 1900 East 9th Street, 3200 National City Center, Cleveland,
Ohio 44114
6. The undersigned consents to appointment as the corporation's initial
registered agent:
Registered agent The Corporation Company
By: /s/ Christen Noakes Signer's Name-printed: Christen Noakes
------------------------
(individual's signature)
7. The address to which the Secretary of State may send a copy of this document
upon completion of filing (or to which the Secretary of State may return this
document if filing is refused) is: The Corporation Company, 1675 Broadway,
Denver, Colorado 80202
Incorporator: BH Acquisition Corp.
/s/ Emanuel J. Cotronakis Signer's Name-printed: Emanuel J. Cotronakis
-------------------------
(individual's signature)
OPTIONAL. The electronic mail and/or Internet address for this entity is/are:
e-mail Web site
-------------------------- -------------------------------------
The Colorado Secretary of State may contact the following authorized person
regarding this document: name
---------------------------------------------------
address
------------------------------------------------------------------------
voice fax e-mail
------------------------- ---------------- -----------------------
[ILLEGIBLE]
COMPUTER UPDATE COMPLETE
MW
For The Office use Only
FILED
DONETTA DAVIDSON
COLORADO SECRETARY OF STATE
20011081600 C
$ 75.00
SECRETARY OF STATE
04-20-2001 11:32:43
Mail to: Secretary of State
Corporations Section
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894-2251
MUST BE TYPED Fax (303) 894-2242
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
CHANGE OF NAME
ARTICLES OF AMENDMENT
Please include a typed TO THE
self-addressed envelope ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned adopts the following Articles of Incorporation:
FIRST: The name of the corporation is BH Acquisition Corp.
SECOND: The following amendment to the Articles of Incorporation was adopted on
April 19, 2001, as prescribed by the Colorado Business Corporation Act, in the
manner marked with an X below:
xx No shares have been issued or Directors Elected - Action by Incorporators
No shares have been issued but Directors Elected - Action by Directors
- ---
Such amendment was adopted by the board of directors where shares have been
- --- issued and shareholder action was not required.
Such amendment was adopted by a vote of the shareholders. The number of
- --- shares voted for the amendment was sufficient for approval.
THIRD: If changing corporate name, the new name of the corporation is BH
Acquisition, Inc.
FOURTH: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the amendment
shall be effected, is as follows: N/A
If these amendments are to have a delayed effective date, please list that date:
N/A
(Not to exceed ninety (90) days from the date of filing)
BH Acquisition Corp.
Signature /s/ Emanuel J. Cotronakis
-----------------------------------
Title Emanuel J. Cotronakis, Incorporator
Revised 7/95
COMPUTER UPDATE COMPLETE
ST
FILED
DONETTA DAVIDSON
COLORADO SECRETARY OF STATE
20021043920 C
$ 110.00
SECRETARY OF STATE
02-22-2002 11:12:18
ARTICLES OF MERGER
THESE ARTICLES OF MERGER, dated as of the 22nd day of February, 2002,
pursuant to Section 7-111-105 of the Colorado Business Corporation Act (the
"Act"), are entered into by and among the parties named in Article FIRST below
("Parties").
FIRST: The Parties to these Articles of Merger are Gameco, Inc., a Delaware
corporation ("Gameco"), BH Acquisition, Inc., a Colorado corporation ("BHA"),
and Black Hawk Gaming & Development Company, Inc., a Colorado corporation (the
"Company"). The Company and BHA are referred to herein collectively as the
"Constituent Corporations."
SECOND: The Parties have agreed to effect a merger, and the terms and
conditions of the merger, the mode of carrying the same into effect, and the
manner and basis of converting or exchanging the shares of issued stock of each
of the Constituent Corporations into different stock or other consideration, and
the manner of dealing with any issued stock of the Constituent Corporations not
to be so converted or exchanged, are and shall be as set forth herein.
THIRD: The Company shall be the surviving corporation under the name of
Black Hawk Gaming & Development Company, Inc. (the "Surviving Corporation").
FOURTH: Following the merger, the separate existence of BHA shall cease and
the Company shall continue as the Surviving Corporation and a wholly-owned
subsidiary of Gameco.
FIFTH: The Articles of Incorporation of the Company now in effect shall
continue as the Articles of Incorporation of the Surviving Corporation with the
same force and effect as if herein set forth in full; and, from and after the
Effective Time (as defined in Article TWELFTH herein), and until amended as
provided by law, they shall be, and may be separately certified as, the Articles
of Incorporation of the Surviving Corporation.
SIXTH: Immediately prior to the Effective Time the Company has an
authorized capitalization of (a) 40,000,000 shares of common stock of which
4,154,400 shares are issued and outstanding; and (b) 10,000,000 shares of
preferred stock of which no shares are issued and outstanding. BHA has an
authorized capitalization of 1,000 shares of common stock of which 1,000 shares
are issued and outstanding.
SEVENTH: The manner and basis of converting or exchanging the issued stock
of each of the Constituent Corporations into different stock or other
consideration, and the manner of dealing with any issued stock of the
Constituent Corporations not to be so converted or exchanged at the Effective
Time, shall be as follows:
(a) Each issued and outstanding share of the Company's common stock,
par value $.001 per share ("Company Common Stock"), held by the Company as
treasury stock and each issued and outstanding share of Company Common Stock
owned by any subsidiary of the Company, Gameco, BHA or any other subsidiary of
Gameco shall be canceled and retired and shall cease to exist, and no payment or
consideration shall be made with respect thereto.
(b) Each issued and outstanding share of Company Common Stock, other
than shares of Company Common Stock referred to in paragraph (a) above, shall be
converted into the right to receive an amount in cash, without interest, equal
to $12.00 (the "Merger Consideration"). At the Effective Time, all such shares
of Company Common Stock shall no longer be outstanding and shall automatically
be canceled and retired and shall cease to exist, and each holder of a
certificate representing any such shares of Company Common Stock shall cease to
have any rights with respect thereto, except the right to receive the Merger
Consideration, without interest.
(c) Each issued and outstanding share of capital stock or ownership
interest of BHA shall be converted into one fully paid and nonassessable share
of common stock, par value $.001 per share, of the Surviving Corporation.
(d) Prior to the Effective Time, Gameco shall appoint a bank or trust
company reasonably satisfactory to the Company to act as disbursing agent (the
"Disbursing Agent") for the payment of Merger Consideration upon surrender of
certificates representing the shares of Company Common Stock. Gameco will enter
into a disbursing agent agreement with the Disbursing Agent, in form and
substance reasonably acceptable to the Company. At or prior to the Effective
Time, Gameco shall deposit or cause to be deposited with the Disbursing Agent in
trust for the benefit of the Company's stockholders cash in an aggregate amount
necessary to make the payments pursuant to paragraph (b) above to holders of
shares of Company Common Stock (such amounts being hereinafter referred to as
the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund, as
the Surviving Corporation directs, in direct obligations of the United States of
America, obligations for which the full faith and credit of the United States .
of America is pledged to provide for the payment of all principal and interest
or commercial paper obligations receiving the highest rating from either Moody's
Investors Service, Inc. or Standard & Poor's, a division of The McGraw Hill
Companies, or a combination thereof, provided that, in any such case, no such
instrument shall have a maturity exceeding three months. Any net profit
resulting from, or interest or income produced by, such investments shall be
payable to the Surviving Corporation. The Exchange Fund shall be used only as
provided in the Agreement and Plan of Merger.
(e) Promptly (but no later than five days) after the Effective Time,
the Surviving Corporation shall cause the Disbursing Agent to mail to each
person who was a record holder as of the Effective Time of an outstanding
certificate or certificates which immediately prior to the Effective Time
represented shares of Company Common Stock (the "Certificates"), and whose
shares were converted into the right to receive Merger Consideration pursuant to
paragraph (b) above, a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Disbursing Agent) and
instructions for use in effecting the surrender of the Certificates in exchange
for payment of the Merger Consideration. Upon surrender to the
2
Disbursing Agent of a Certificate, together with such letter of transmittal duly
executed and such other documents as may be reasonably required by the
Disbursing Agent, the holder of such Certificate shall be paid promptly in
exchange therefor cash in an amount equal to the product of the number of shares
of Company Common Stock represented by such Certificate multiplied by the
Merger Consideration, and such Certificate shall forthwith be canceled. No
interest will be paid or accrue on the cash payable upon the surrender of the
Certificates. If payment is to be made to a person other than the person in
whose name the Certificate surrendered is registered, it shall be a condition of
payment that the Certificate so surrendered be properly endorsed or otherwise be
in proper form for transfer and that the person requesting such payment pay any
transfer or other taxes required by reason of the payment to a person other than
the registered holder of the Certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
applicable. Until surrendered in accordance with this paragraph (e), each
Certificate (other than shares of Company Common Stock referred to in paragraph
(a) above) shall represent for all purposes only the right to receive the Merger
Consideration in cash multiplied by the number of shares of Company Common
Stock evidenced by such Certificate, without any interest thereon.
(f) From and after the Effective Time, there shall be no registration
of transfers of shares of Company Common Stock which were outstanding
immediately prior to the Effective Time on the stock transfer books of the
Surviving Corporation. From and after the Effective Time, the holders of shares
of Company Common Stock outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such shares of Company Common
Stock except as otherwise provided in the Agreement and Plan of Merger or by
applicable law. All cash paid upon the surrender of Certificates in accordance
with the Agreement and Plan of Merger shall be deemed to have been paid in full
satisfaction of all rights pertaining to the shares of Company Common Stock
previously represented by such Certificates. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, such
Certificates shall be canceled and exchanged for cash as provided in the
Agreement and Plan of Merger. At the close of business on the day of the
Effective Time the stock ledger of the Company shall be closed.
(g) At any time more than 365 days after the Effective Time, the
Surviving Corporation shall be entitled to require the Disbursing Agent to
deliver to it any funds which had been made available to the Disbursing Agent
and not disbursed in exchange for Certificates (including, without limitation,
all interest and other income received by the Disbursing Agent in respect of all
such funds). Thereafter, holders of shares of Company Common Stock shall look
only to the Surviving Corporation (subject to the terms of the Agreement and
Plan of Merger, abandoned property, escheat and other similar laws) as general
creditors thereof with respect to any Merger Consideration that may be payable,
without interest, upon due surrender of the Certificates held by them. If any'
Certificates shall not have been surrendered prior to five years after the
Effective Time (or immediately prior to such time on which any payment in
respect hereof would otherwise escheat or become the property of any
governmental unit or agency), the payment in respect of such Certificates shall,
to the extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any person previously
entitled thereto. Notwithstanding the foregoing, none of Gameco, the Company,
the Surviving Corporation nor the Disbursing Agent shall be liable to any holder
of a share of
3
Company Common Stock for any Merger Consideration in respect of such share of
Company Common Stock delivered to a public official pursuant to any abandoned
property, escheat, or other similar law.
(h) If any Certificate has been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the person claiming such Certificate to
be lost, stolen, or destroyed and, if required by the Surviving Corporation, the
posting by such person of a bond in such reasonable amount as the Surviving
Corporation may direct as indemnity against any claim that may be made against
the Surviving Corporation with respect to such Certificate, the Disbursing
Agent will deliver in exchange for such lost, stolen, or destroyed Certificate,
the appropriate Merger Consideration with respect to the shares of Company
Common Stock formerly represented by that Certificate.
(i) The Surviving Corporation or the Disbursing Agent, as the case may
be, may deduct and withhold from the consideration otherwise payable pursuant to
this Agreement to any holder of shares of Company Common Stock such amounts as
the Surviving Corporation or the Disbursing Agent, as the case may be, may be
required to deduct and withhold with respect to the making of any such payment
under the Internal Revenue Code of 1986, as amended, or any provision of state,
local, or foreign tax law, including without limitation withholdings required
in connection with payments under paragraph (j) below. To the extent withheld by
the Surviving Corporation or the Disbursing Agent, such withheld amounts shall
be treated for all purposes of this Agreement as having been paid to the
holders of the shares of Company Common Stock in respect of which such deduction
and withholding was made.
(j) At the Effective Time, each unexercised option, whether or not
then vested or exercisable in accordance with its terms, to purchase- shares of
Company Common Stock (the "Options") previously granted by the Company or, any
of its subsidiaries shall be canceled automatically and Gameco shall or shall
cause the Surviving Corporation to provide the holder thereof with a lump sum
cash payment equal to the product of (i) the total number of shares of Company
Common Stock subject to such Option immediately prior to the Effective Time and
(ii) the excess (if any) of the Merger Consideration over the exercise price per
share of Company Common Stock subject to such Option.
(k) Notwithstanding anything in the Agreement and Plan of Merger to
the contrary, shares of Company Common Stock outstanding immediately prior to
the Effective Time and held by a holder who has not voted in favor of the plan
of merger and who has dissented from the plan of merger in accordance with
Article 113 of the Act ("Dissenting Shares") shall not be converted into the
right to receive the Merger Consideration as provided in paragraph (b) above,
unless and until such holder fails to perfect or withdraws or otherwise loses
his right to payment under the Act. If, after the Effective Time, any such
holder fails to perfect or withdraws or loses his right to such payment, such
Dissenting Shares shall thereupon be treated as if they had been converted as of
the Effective Time into the right to receive the Merger Consideration, if any,
to which such holder is entitled, without interest thereon. The Company shall
give Gameco and BHA prompt notice of any notice of dissent received by Company
and, prior to the Effective Time, Gameco and BHA shall have the right to
participate in all negotiations and proceedings with respect to such dissents.
Prior to the Effective Time,
4
Company shall not, except with the prior written consent of Gameco and BHA, make
any payment with respect to, or settle or offer to settle, any such dissents.
EIGHTH: The principal office of the Company and the Surviving Corporation
in the State of Colorado is 240 Main Street, Black Hawk, Colorado 80422 1ocated
in the County of Gilpin.
NINTH: The principal office of BHA in the State of Colorado is 240 Main
Street, Black Hawk, Colorado 80422 located in the County of Gilpin.
TENTH: These Articles of Merger were duly advised, authorized, and approved
in the manner and by the vote of the Company's shareholders required by its
Articles of Incorporation and by the laws of the State of Colorado. The number
of votes cast for the plan of merger by each voting group entitled to vote
separately on the plan of merger was sufficient for approval by that voting
group.
ELEVENTH: These Articles of Merger were duly advised, authorized, and
approved in the manner and by the vote of the shareholders of BHA required by
its Articles of Incorporation and by the laws of the State of Colorado. The
number of votes cast for the plan of merger by each voting group entitled to
vote separately on the plan of merger was sufficient for approval by that voting
group.
TWELFTH: The merger provided for by these Articles of Merger shall become
effective when these Articles of Merger are filed with the Colorado Secretary of
State and the separate existence of BHA, except insofar as continued by statute,
shall cease. on the date that these Articles of Merger, duly advised, approved,
signed, acknowledged, sealed, and verified by BHA and Surviving Corporation as
required by the laws of the State of Colorado, are filed for record with the
Secretary of State of Colorado, as required by the laws of the State of
Colorado (the "Effective Time").
IN WITNESS WHEREOF, Black Hawk Gaming & Development Company, Inc., BH
Acquisition, Inc., and Gameco, Inc. have caused these Articles of Merger to be
signed in their respective corporate names and on their behalf by their
respective Presidents and witnessed or attested by their respective Secretaries
as of the 22nd day of Febru1ary, 2002.
ATTEST: BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC.
/s/ Illegible By:/s/ Stephen R. Roark
- ----------------------------------- -------------------------------
Secretary Stephen R. Roark, President
5
ATTEST: BH ACQUISITION, INC.
By:/s/ Jeffrey P. Jacobs
- ----------------------------------- -------------------------------
Secretary Jeffrey P. Jacobs, President
ATTEST: GAMECO, INC.
By:/s/ Jeffrey P. Jacobs
- ----------------------------------- -------------------------------
Secretary Jeffrey P. Jacobs, President
6