EXHIBIT 3.9
FORM OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
EVENTS CENTER CATERING, INC.
Events Center Catering, Inc. (the "Corporation"), a
corporation organized and existing under the laws of the State of Wyoming, DOES
HEREBY CERTIFY:
The name of the Corporation is Events Center Catering, Inc.
The Corporation filed its original Certificate of Incorporation with the
Secretary of State of the State of Wyoming on June 13, 1994.
These Amended and Restated Articles of Incorporation, which
restate and further amend the Articles of Incorporation of the Corporation as
heretofore amended and restated, has been duly adopted in accordance with
Sections 17-16-704, 17-16-821, 17-16-1003 and 17-16-1007 of the Wyoming Business
Corporation Act ("WBCA"). The Corporation has received payment for its stock.
The Articles of Incorporation of the Corporation, as
heretofore amended and restated, is hereby further amended and restated to read
in their entirety as follows:
FIRST: The name of the Corporation is Events Center Catering,
Inc.
SECOND: The registered office and registered agent of the
Corporation in the State of Wyoming is CT Corporation System, 1720 Carey Avenue,
Cheyenne, WY 82001.
THIRD: The purposes of the Corporation are to engage in any
lawful act or activity for which corporations may be organized under the WBCA.
FOURTH: (1) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 100 shares of Common
Stock ("Common Stock"), with par value of $0.01 per share. The number of
authorized shares of Common Stock may be decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority in voting power of the stock of the Corporation entitled to vote
thereon irrespective of the provisions of Section 17-116-1004 of the WBCA (or
any successor provision thereto).
(2) (a) Each holder of Common Stock, as such, shall be entitled to one
vote for each share of Common Stock held of record by such holder on all matters
on which shareholders generally are entitled to vote.
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(b) Subject to applicable law, dividends may be declared and paid
on the Common Stock at such times and in such amounts as the Board of Directors
in its discretion shall determine.
(c) Upon the dissolution, liquidation or winding up of the
Corporation the holders of the Common Stock, as such, shall be entitled to
receive the assets of the Corporation available for distribution to its
shareholders ratably in proportion to the number of shares held by them.
FIFTH: The Board of Directors shall be authorized to make,
amend, alter, change, add to or repeal the By-Laws of the Corporation without a
shareholder vote in any manner not inconsistent with the laws of the State of
Wyoming or these Amended and Restated Articles of Incorporation, subject to the
power of the shareholders entitled to vote to amend, alter, change, add to or
repeal the By-Laws made by the Board of Directors. Notwithstanding anything
contained in these Amended and Restated Articles of Incorporation to the
contrary, the affirmative vote of the holders of at least a majority in voting
power of all the shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required in
order for the shareholders to amend, alter, change, add to or repeal the By-Laws
of the Corporation.
SIXTH: (1) To the fullest extent permitted by the laws of the
State of Wyoming:
(a) Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative is or was a
director or an officer of the Corporation (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer or in any other capacity while serving as a director or
officer shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the WBCA, as the same exists or may hereafter be amended,
against all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in the By-Laws of the
Corporation with respect to proceedings to enforce rights to indemnification and
"advancement of expenses" (as defined below), the Corporation shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
(b) In addition to the right to indemnification conferred
in this Article Sixth, Section (1), an indemnitee shall also have the right to
be paid by the Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the WBCA requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer such indemnification shall be made only upon delivery to the
Corporation of (i) a written affirmation by the indemnitee of the indemnitee's
good faith belief that he or she has met the standard of conduct set forth in
Section 17-16-202(b)(iv) of the WBCA, and (ii) an undertaking, by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal
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(hereinafter a "final adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Article Sixth or otherwise, and that he
or she has met the standard of conduct described in Section 17-16-851 of the
WBCA.
(2) A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) in an amount equal to the
financial benefit received by a director to which he or she is not entitled,
(ii) for an intentional infliction of harm on the Corporation or shareholders,
(iii) a violation of Section 17-16-833 of the WBCA or (iv) an intentional
violation of criminal law. Any repeal or modification of this Article Sixth,
Section (2) shall be prospective only, and shall not adversely affect any
elimination or limitation of the personal liability of a director of the
Corporation in respect of any act or omission occurring prior to the time of
such repeal or modification. If the WBCA is amended after the effective date of
these Amended and Restated Articles of Incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the WBCA, as so amended.
SEVENTH: The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of at least
one (1) director, the exact number of directors to be determined from time to
time by resolution adopted by an affirmative vote of a majority of the Board of
Directors. A director shall hold office until the next annual meeting of
shareholders and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any newly created directorship on the Board of Directors
that results from an increase in the number of directors shall be filled only by
a majority of the directors then in office, although less than a quorum, or by a
sole remaining director for a term which shall expire at the next annual meeting
of shareholders and until a successor is elected and shall qualify. The number
of directors may be decreased but in no case shall a decrease in the number of
directors shorten the term of any incumbent director. Directors may be removed
with or without cause by the affirmative vote of at least a majority in voting
power of all shares of the Corporation entitled to vote generally in the
election of directors.
EIGHTH: Any action required or permitted to be taken by the
holders of the Common Stock of the Corporation may be effected at a duly called
annual or special meeting of such holders or by any consent in writing by such
holders. Special meetings of shareholders of the Corporation may be called only
by (i) the Chairman of the Board of Directors of the Corporation or by the Board
of Directors pursuant to a resolution approved by the Board of Directors or (ii)
the Board of Directors upon a request by the holders of at least 25% in voting
power of all shares of the Corporation entitled to vote at such meeting.
Meetings of shareholders may be held within or without the State of Wyoming, as
the By-Laws of the Corporation may provide. The books of the Corporation may be
kept outside the State of Wyoming at such place or places as may be designated
by the Board of Directors or in the By-Laws of the Corporation.
NINTH: The holders of a majority in voting power of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business.
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TENTH: Notwithstanding anything contained in this Amended and
Restated Articles of Incorporation to the contrary, the affirmative vote of the
holders of at least two-thirds in voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, shall be
required to alter, amend or repeal Article Fifth, Article Sixth, Article
Seventh, Article Eighth, Article Ninth or this Article Tenth or to adopt any
provision inconsistent therewith.
ELEVENTH: The affirmative vote of two-thirds of the members of
the Board of Directors in office shall be required to approve any merger, any
sale of all or substantially all of the assets of the Corporation, any
liquidation of the Corporation or the filing by the Corporation of a voluntary
petition in bankruptcy.
* * *
IN WITNESS WHEREOF, EVENTS CENTER CATERING, INC. has caused
its corporate seal to be hereunto affixed and this certificate to be signed by
Janet L. Steinmayer, its Vice President, General Counsel and Secretary, on this
____ day of ____, 2003.
EVENTS CENTER CATERING, INC.
By:________________________________
Name: Janet L. Steinmayer
Title: Vice President, General
Counsel and Secretary