AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WHG RESORTS & CASINOS INC.
WHG Resorts & Casinos Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is WHG Resorts & Casinos Inc. and the
name under which the corporation was originally organized was Williams Hotel
Corporation. The date of filing of its original Certificate of Incorporation
with the Secretary of State was June 13, 1983.
2. This Amended and Restated Certificate of Incorporation restates,
integrates and further amends the Certificate of Incorporation, as amended, of
the corporation by amending and restating in its entirety such Certificate of
Incorporation, as amended.
3. This Amended and Restated Certificate of Incorporation was duly
adopted by the Board of Directors of the corporation and by the sole stockholder
of the corporation in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
4. The Certificate of Incorporation, as amended, of the corporation, as
amended and restated herein, shall at the effective time of this Amended and
Restated Certificate of Incorporation read as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is: WHG Resorts & Casinos Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is: 1209 Orange
Street, City of Wilmington, County of New Castle, and the name of the registered
agent of the Corporation in the State of Delaware is: The Corporation Trust
Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The Corporation is to have perpetual existence.
FIFTH: 5.1. The aggregate number of shares that the Corporation shall
have authority to issue is 17,000,000 shares, of which (a) 12,000,000 shares
shall be voting common stock, par value $.01 per share (the "Voting Common
Stock"); 3,000,000 shares shall be Class
A non-voting common stock, par value $.01 per share (the "Non-Voting Common
Stock"); and (c) 2,000,000 shares shall be preferred stock, par value $.01 per
share (the "Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of each class of stock of the
Corporation shall be the same in all respects, as though shares of one class,
except as follows:
5.2. Issuance
5.2.1 Authority is hereby expressly granted to and vested in
the Board of Directors of the Corporation to provide for the issue of the
Non-Voting Common Stock in one or more series and in connection therewith to fix
by resolution or resolutions providing for the issue of such series of the
number of shares to be included in such series and the Board of Directors is
authorized to determine any or all of the following, and the shares of each
series may vary from the shares of any other series in any or all of the
following aspects:
5.2.1.1 The number of shares of such series (which
may subsequently be increased, except as otherwise provided by a
resolution or resolutions of the Board of Directors providing for the
issue of such series, or decreased to a number not less than the number
of shares then outstanding) and the distinctive designation thereof;
5.2.1.2 The time or times during which, the price or
prices at which, and any other terms or conditions on which the shares
of such series may be redeemed, if redeemable; and
5.2.1.3 Whether shares of such series shall be
convertible into or exchangeable for shares of Voting Common Stock or
other securities and the terms and conditions, if any, applicable to
such right.
5.2.2 Except as otherwise provided in this Section 5.2 or as
otherwise required by applicable law, the holders of shares of Non-Voting Common
Stock shall have no right to vote on any matters to be voted on by the
stockholders of the Corporation; provided that the holders of shares of
Non-Voting Common Stock shall have the right to vote as a separate class on any
merger or consolidation of the Corporation with or into another entity or
entities, or any recapitalization or reorganization, in each case in which
shares of Non-Voting Common Stock would receive or be exchanged for
consideration different on a per share basis than the consideration received
with respect to or in exchange for shares of Voting Common Stock or would
otherwise be treated differently from shares of Voting Common Stock in
connection with such transaction, except that shares of Non-Voting Common Stock
may, without such a separate class vote, receive or be exchanged for non-voting
securities that are otherwise identical on a per share basis in amount and form
to the voting securities received with respect to or exchanged for the shares of
Voting Common Stock so long as (A) such non-voting securities are convertible
into such voting securities on the same terms as shares of Non-Voting Common
Stock may be
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convertible into shares of Voting Common Stock and (B) all other consideration
is equal on a per share basis. In no event shall holders of shares of Non-Voting
Common Stock be required to receive voting securities pursuant to any such
merger, consolidation, recapitalization or reorganization. Rather, appropriate
provision shall be made so that holders of shares of Non-Voting Common Stock
have the right to receive non-voting securities that are otherwise identical to
any voting securities offered in such merger, consolidation, recapitalization or
reorganization and that are convertible into such voting securities on the same
basis as shares of Non-Voting Common Stock may be convertible into shares of
Voting Common Stock.
5.2.3 As and when dividends are declared or paid thereon,
whether in cash, property or securities of the Corporation, the holders of
shares of Voting Common Stock and shares of Non-Voting Common Stock shall be
entitled to participate in such dividends ratably on a per share basis; provided
that (i) if dividends are declared that are payable in shares of Voting Common
Stock or shares of Non-Voting Common Stock then dividends shall be declared that
are payable at the same rate on both classes of stock and the dividends payable
in shares of Voting Common Stock (or rights to subscribe for or purchase the
same) shall be payable to holders of that class of stock and the dividends
payable in shares of Non-Voting Common Stock (or rights to subscribe for or
purchase the same) shall be payable to holders of that class of stock and (ii)
if the dividends consist of other voting securities of the Corporation, the
Corporation shall make available to each holder of shares of Non-Voting Common
Stock, at such holder's request, dividends consisting of non-voting securities
of the Corporation that are otherwise identical to the voting securities and
that are convertible into or exchangeable for such voting securities on the same
terms as shares of Non-Voting Common Stock may be convertible into shares of
Voting Common Stock.
5.3. Issuance
5.3.1 Authority is hereby expressly granted to and vested in
the Board of Directors of the Corporation to provide for the issue of the
Preferred Stock in one or more series and in connection therewith to fix by
resolution or resolutions providing for the issue of such series of the number
of shares to be included in such series and the designations and such voting
powers, full or limited, or no voting powers, and such of the preferences and
relative, participating, operational or other special rights, and the
qualifications, limitations or restrictions thereof, of such series of the
Preferred Stock which are not fixed by this Amended and Restated Certificate of
Incorporation, to the full extent now or hereafter permitted by the General
Corporation Law of the State of Delaware. Without limiting the generality of the
grant of authority contained in the preceding sentence, the Board of Directors
is authorized to determine any or all of the following, and the shares of each
series may vary from the shares of any other series in any or all of the
following aspects:
5.3.1.1 The number of shares of such series (which
may subsequently be increased, except as otherwise provided by a
resolution or resolutions of the Board of Directors providing for the
issue of such series, or decreased to a number
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not less than the number of shares then outstanding) and the
distinctive designation thereof;
5.3.1.2 The dividend rights, if any, of such series,
the dividend preferences, if any, as between such series and any other
class or series of stock, whether and the extent to which shares of
such series shall be entitled to participate in dividends with shares
of any other series or class of stock, whether and the extent to which
dividends on such series shall be cumulative, and any limitations,
restrictions or conditions on the payment of such dividends;
5.3.1.3 The time or times during which, the price or
prices at which, and any other terms or conditions on which the shares
of such series may be redeemed, if redeemable;
5.3.1.4 The rights of such series, and the
preferences, if any, as between such series and any other class or
series of stock, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation and whether
and the extent to which shares of any such series shall be entitled to
participate in such event with any other class or series of stock;
5.3.1.5 The voting powers, if any, in addition to the
voting powers prescribed by law of shares of such series, and the terms
of exercise of such voting powers;
5.3.1.6 Whether shares of such series shall be
convertible into or exchangeable for shares of any other series or
class of stock, or any other securities, and the terms and conditions,
if any, applicable to such right; and
5.3.1.7 The terms and conditions, if any, of any
purchase, retirement or sinking fund which may be provided for the
shares of such series.
5.3.2 Except as otherwise provided by law, the Board of
Directors shall have full authority to issue, at any time and from time to time,
shares of the Corporation's Voting Common Stock in any manner and amount and for
such consideration as it, in its absolute discretion, shall determine.
5.4. Voting Rights
Except as otherwise expressly required by law, in all matters
as to which the vote of stockholders of the Corporation shall be required to be
taken, the holders of the shares of the Voting Common Stock shall be entitled to
one vote for each share of such stock held by them. Except as otherwise
expressly required by law, in all matters as to which the vote of stockholders
of the Corporation shall be required to be taken, the holders of the Preferred
Stock shall have such voting rights as may be determined from time to time by
the Board of
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Directors, by resolution or resolutions providing for the issuance of such
Preferred Stock or any series thereof. Except as otherwise expressly required by
law, the holders of Non-Voting Common Stock shall not have voting rights.
5.5. Conversion
5.5.1 The Board of Directors of the Corporation, by the
resolution adopted for the purpose of establishing any series of Preferred
Stock, may fix and determine the ratios and the terms and conditions under which
such series of Preferred Stock may or shall be converted into shares of another
series of Preferred Stock or shares of any other class of stock of the
Corporation.
5.5.2 The Board of Directors of the Corporation, by the
resolution adopted for the purpose of establishing any series of Non-Voting
Common Stock, may fix and determine the terms and conditions under which such
series of Non-Voting Common Stock may or shall be converted into shares of
another series of Non-Voting Common Stock or Voting Common Stock.
5.5.3 No fractional shares shall be issued upon any conversion
pursuant to this Section 5.5. In lieu thereof, the Corporation shall (1) pay to
the holders otherwise entitled to fractional shares cash, equal to the market
value thereof as at the date of conversion, such market value to be determined
in good faith by the Board of Directors of the Corporation; or (2) issue and
deliver to them scrip or warrants which shall entitle the holder thereof to
receive a certificate for a full share upon surrender of such scrip or warrants
aggregating a full share, such scrip or warrants to be in such form and to
contain such provisions as shall be determined by the Board of Directors of the
Corporation. Upon conversion, no allowance or adjustment shall be made with
respect to shares of Non-Voting Common Stock or Preferred Stock for cash
dividends declared but unpaid on such stock.
5.6. Dividends
5.6.1 The holders of the Preferred Stock shall be entitled to
fixed dividends when and as declared and at the rates determined by the
resolution or resolutions of the Board of Directors which establishe(s) the
series to which the rates shall apply. Said resolution or resolutions may
determine whether the said dividends shall be cumulative, the time fixed for
payment thereof, whether the said dividends shall be set aside or paid before,
on a par with, or only after, the dividends shall be set aside or paid on the
Voting Common Stock and Non-Voting Common Stock.
5.6.2 The holders of Voting Common Stock and Non-Voting Common
Stock shall be entitled to receive, as and when declared and made payable by the
Board of Directors, and after all dividends, current and accrued, shall have
been paid or declared and set apart for payment upon the Preferred Stock, to the
extent the Board of Directors shall have directed the dividends on Preferred
Stock to be paid, or declared and set apart for payment
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before the payment or setting apart of dividends on the Voting Common Stock and
Non-Voting Common Stock, such dividends as may be declared by the Board of
Directors from time to time. Except as otherwise provided in Section 5.2.3
hereof, each share of Voting Common Stock and Non-Voting Common Stock shall in
all ways be treated equally in respect of dividends.
5.7. Liquidation or Dissolution
5.7.1 The Board of Directors, by the resolution or resolutions
which establishe(s) a series of Preferred Stock, shall determine a fixed
liquidation amount applicable to said series. Said resolution or resolutions may
determine (1) that said series shall participate in any distribution on
liquidation, dissolution or winding-up of the affairs of the Corporation before
the payment, in full or in part, of the fixed liquidation amounts payable with
respect to the Voting Common Stock and Non-Voting Common Stock; (2) that said
series shall participate in any distribution on liquidation, dissolution or
winding-up of the affairs of the Corporation, ratably with the Voting Common
Stock and Non-Voting Common Stock (or any other series of Preferred Stock having
liquidation rights on a par with the Voting Common Stock and NonVoting Common
Stock) in proportion to amounts equal to the fixed liquidation amounts of the
shares as participating plus dividends thereon which have been declared and are
unpaid; or (3) that said shares shall participate in any distribution on
liquidation, dissolution or winding-up of the affairs of the Corporation only
after the payment, in full or in part, of the fixed liquidation amounts plus
dividends thereon which have been declared and are unpaid on the Voting Common
Stock and Non-Voting Common Stock (and any series of Preferred Stock having
liquidation rights on a par with the Voting Common Stock and Non-Voting Common
Stock). Said shares shall have liquidation preferences and rights as determined
in said resolution or resolutions.
5.7.2 In the event of liquidation or dissolution the holders
of the Voting Common Stock and Non-Voting Common Stock shall be entitled to
receive out of the assets of the Corporation, after payment of debts and
liabilities, a pro rata distribution in proportion to the respective number of
shares of Voting Common Stock and Non-Voting Common Stock held by each of them;
provided, however, (1) in the event the Board of Directors of the Corporation
establishes one or more series of Preferred Stock entitled to a distribution on
liquidation, dissolution or winding-up of the affairs of the Corporation before
any such distribution shall be made with respect to the Voting Common Stock and
Non-Voting Common Stock; such liquidation preference in favor of Preferred Stock
shall be paid before the liquidation amount payable to the holders of Voting
Common Stock and Non-Voting Common Stock pursuant to this subparagraph 5.7.2
shall be paid; and (2) in the event the Board of Directors of the Corporation
establishes one or more series of Preferred Stock entitled to participate
ratably with holders of shares of the Voting Common Stock in any distribution on
liquidation, dissolution or winding-up of the affairs of the Corporation, the
holders of the Voting Common Stock and Non-Voting Common Stock shall participate
ratably with each said series of Preferred Stock so entitled as set forth in
subparagraph 5.7.1(2) above.
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SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, the powers of the Corporation and its directors and
stockholders, it is provided:
The business and affairs of the Corporation shall be managed
by, or under the direction of, the Board of Directors of the Corporation
comprised as follows:
6.1. The number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption) but in no event shall the
total number be less than five (5) nor more than fifteen (15).
6.2. Effective as of the effective date of this Amended and
Restated Certificate of Incorporation, the directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. The term of the initial Class I
directors shall terminate on the date of the 2000 annual meeting of
stockholders; the term of the initial Class II directors shall terminate on the
date of the 1999 annual meeting of stockholders; and the term of the initial
Class III directors shall terminate on the date of the 1998 annual meetings of
stockholders. At each annual meeting of stockholders beginning in 1998,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease in directorships shall be apportioned among the classes
so as to maintain the number of directors in each class as nearly equal as
possible, and any additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office only until the next
election of directors of that class by the stockholders of the Corporation, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. Directors shall hold office until the annual meeting for the
year in which their terms expire and until their successors shall be duly
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy on the Board of
Directors, howsoever resulting, including through an increase in the number of
directors, shall only be filled by the affirmative vote of a majority of the
remaining directors then in office, even if less than a quorum, or by the sole
remaining director. Any director elected to fill a vacancy shall hold office for
the same remaining term as that of his or her predecessor, or if such director
was elected as a result of an increase in the number of directors, then for the
term indicated in this subsection 6.2 of this Article SIXTH.
6.3. Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect directors
at an annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of this Amended and Restated Certificate of Incorporation, or the
resolution or resolutions adopted by the Board of Directors creating such class
or series, as the
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case may be, applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article SIXTH unless expressly provided by
such terms.
6.4. Subject to the rights of holders of any class or series of
Preferred Stock,
6.4.1 nominations for the election of directors, and
6.4.2 business proposed to be brought before an annual meeting
of stockholders
may be made by the Board of Directors or proxy committee appointed by the Board
of Directors or by any stockholder entitled to vote in the election of directors
generally. However, any such stockholder may nominate one or more persons for
election as directors at an annual meeting or propose business to be brought
before an annual meeting, or both, only if such stockholder has given timely
notice in proper written form of his or her intent to make such nomination or
nominations or to propose such business. To be timely, a stockholder's notice
must be delivered to or mailed and received by the Secretary of the Corporation
not less than 60 days nor more than 90 days prior to the annual meeting;
provided, however, that in the event that less than 70 days notice or prior
public disclosure of the date of the annual meeting is given or made to
stockholders, notice by a stockholder, to be timely, must be received no later
than the close of business on the tenth day following the date on which such
notice of the date of the annual meeting was made or such public disclosure was
made, whichever first occurs. To be in proper written form, a stockholder's
notice to the Secretary shall set forth:
6.4.2.1 the name and address of the stockholder who
intends to make the nominations or propose the business and, as the
case may be, of the person or persons to be nominated or of the
business to be proposed;
6.4.2.2 a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such
meeting and, if applicable, intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
6.4.2.3 if applicable, a description of all
arrangements or understandings between the stockholder and each nominee
and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder;
6.4.2.4 such other information regarding each nominee
or each matter of business to be 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 had the nominee
been nominated, or intended to be nominated, or the matter been
proposed, or intended to be proposed, by the Board of Directors, and
such other information about the nominee as the Board of Directors
deems appropriate,
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including, without limitation, the nominee's age, business and
residence addresses, principal occupation and the class and number of
shares of Voting Common Stock beneficially owned by the nominee, or
such other information about the business to be proposed and about the
stockholder making such business proposal before the annual meeting as
the Board of Directors deems appropriate, including, without
limitation, the class and number of shares of Voting Common Stock
beneficially owned by such stockholder; and
6.4.2.5 if applicable, the consent of each nominee to
serve as director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
SEVENTH: In accordance with Section 141 of the General Corporation Law
of the State of Delaware any or all of the directors of the Corporation may be
removed from office at any time, but only for cause. A director may be removed
only by the affirmative vote of the holders of eighty percent (80%) of the
outstanding stock of the Corporation then entitled to vote generally for the
election of directors, considered for purposes of this Article SEVENTH as one
class. Cause is defined as being convicted of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal, or being
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the Corporation by a court of competent jurisdiction and such
adjudication is no longer subject to direct appeal.
EIGHTH: In furtherance, and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter,
amend, change, add to or repeal the By-laws of the Corporation and shall have
the right (which, to the extent exercised, shall be exclusive) to establish the
rights, powers, duties, rules and procedures that from time to time shall govern
the Board of Directors and each of its members, including, without limitation,
the vote required for any action by the Board of Directors, and that from time
to time shall affect the directors' powers to manage the business and affairs of
the Corporation, provided that such By-laws are not inconsistent with the
General Corporation Law of the State of Delaware or this Amended and Restated
Certificate of Incorporation, and such By-laws relate to the business of the
Corporation, the conduct of its affairs, and its rights or powers or the rights
or powers of its stockholders, directors, officers or employees. In addition,
the By-laws of the Corporation may be adopted, repealed, altered, amended or
rescinded by the affirmative vote of eighty percent (80%) of the outstanding
stock of the Corporation entitled to vote thereon, provided that such By-laws
are not inconsistent with the General Corporation Law of the State of Delaware
or this Amended and Restated Certificate of Incorporation, and such By-laws
relate to the business of the Corporation, the conduct of its affairs, and its
rights or powers or the rights or powers of its stockholders, directors,
officers or employees. In addition to the powers and authority hereinbefore or
by statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the General
Corporation Law
9
of the State of Delaware, this Amended and Restated Certificate of
Incorporation, and any By-laws adopted by the stockholders; provided, however,
that no By-laws hereafter adopted by the stockholders shall invalidate any prior
act of the directors which would have been valid if such By-laws had not been
adopted.
NINTH: Except as otherwise provided in the resolutions of the Board of
Directors designating any series of Preferred Stock, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders and may not be effected
by a consent in writing by any such stockholders. Subject to the rights of
holders of any class or series of Non-Voting Common Stock or Preferred Stock,
special meetings of stockholders may be called only by the Chairman of the Board
or President of the Corporation or by the Board of Directors pursuant to a
resolution adopted by a majority vote of the total number of authorized
directors (whether or not there exists any vacancies in previously authorized
directorships) at the time any such resolutions are presented to the Board for
adoption. Stockholders of the Corporation are not permitted to call a special
meeting or to require that the Board call a special meeting of stockholders. The
business permitted at any special meeting of stockholders shall be limited to
the business brought before the meeting by or at the direction of the Board.
TENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the General Corporation Law of the State of
Delaware or on the application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of Section 279 of
the General Corporation Law of the State of Delaware order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of this Corporation, as the case may be, and also on this
Corporation.
ELEVENTH: To the fullest extent permitted by the General Corporation
Law of the State of Delaware, as the same may be amended and supplemented, no
director shall be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
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TWELFTH: The Corporation shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, including but not limited to,
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, (i) 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 in or covered by said section
(including attorneys' fees), and (ii) advance expenses to any and all said
persons. The indemnification and advancement of expenses 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 their official capacities and as to
action in another capacity while holding such offices, and shall continue as to
persons who have ceased to be directors, officers, employees or agents and shall
inure to the benefit of the heirs, executors and administrators of such persons.
THIRTEENTH: Notwithstanding anything contained in this Amended and
Restated Certificate of Incorporation or the By-laws of this Corporation to the
contrary (and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law, this Amended and Restated Certificate of
Incorporation, the By-laws of this Corporation or any Non-Voting Common Stock or
Preferred Stock Designation), Articles SIXTH, SEVENTH, EIGHTH, NINTH, TENTH,
ELEVENTH and TWELFTH hereby shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted without the affirmative vote
of the holders of at least eighty percent (80%) of the voting power of all the
outstanding stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class. Notwithstanding anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least eighty percent (80%)
of the voting power of all the stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or adopt any provision inconsistent with or repeal
this Article THIRTEENTH.
FOURTEENTH: The invalidity or unenforceability of this Amended and
Restated Certificate of Incorporation or any portion hereof, or of any action
taken pursuant to this Amended and Restated Certificate of Incorporation shall
not affect the validity or enforceability of any other provision of this Amended
and Restated Certificate of Incorporation or any other portion hereof, or any
other action taken pursuant hereto.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its Chairman of the Board
and Chief Executive Officer, this ___ day of April, 1997.
WHG RESORTS & CASINOS INC.
By: ______________________________
Name: Louis J. Nicastro
Title: Chairman of the Board and
Chief Executive Officer
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