EXHIBIT 3.13
FORM OF
RESTATED AND AMENDED ARTICLES OF INCORPORATION
OF
SERVICE AMERICA CORPORATION OF WISCONSIN
These Restated and Amended Articles of Incorporation consist
of the Articles of Incorporation as to date. The Restated and Amended Articles
of Incorporation were duly adopted in accordance with the provision of the
Wisconsin Business Corporation Law Section 180.1007. These Restated and Amended
Articles of Incorporation supersede and take the place of the existing Restated
Articles of Incorporation and any amendments thereto. These Restated and Amended
articles of Incorporation also contain amendments to the Restated Articles of
Incorporation requiring shareholder approval. The amendments were adopted in
accordance with the provision of the Wisconsin Business Corporation Law
Section 180.1003.
The Restated Articles of Incorporation of the Corporation, as
heretofore amended and restated, are hereby further amended and restated to read
in their entirety as follows:
FIRST: The name of the Corporation is Service America
Corporation of Wisconsin (the "Corporation").
SECOND: The registered office and registered agent of the
Corporation in the State of Wisconsin is CT Corporation System, 44 East Mifflin
Street, Madison, Dane County, Wisconsin 53703.
THIRD: The purposes of the Corporation are to engage in any
lawful act or activity for which corporations may be organized under the
Business Corporation Law of the State of Wisconsin ("WBCL").
FOURTH: (1) The total number of shares of stock which the
Corporation shall have authority to issue is 100, consisting of 100 shares of
Common Stock, par value $0.01 per share ("Common Stock"). The number of
authorized shares of the Common Stock may be increased or 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.
(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
Wisconsin or these Restated and Amended 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 Restated and Amended Articles of Incorporation to the
contrary, the affirmative vote of the holders of at a majority in voting power
of all the shares of the Corporation entitled to vote generally in the election
of directors 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 Wisconsin:
(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 or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or trustee or in any other capacity
while serving as a director, officer or trustee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the WBCL, as the
same exists or may hereafter be amended, against all reasonable 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, upon his or her written request,
shall also have the right to be paid by the Corporation the reasonable expenses
(including attorneys' fees) incurred in defending any such proceeding as
incurred (hereinafter an "advancement of expenses"); provided, however, that, if
the WBCL requires, an advancement of expenses incurred by an indemnitee in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of: (1) a written affirmation of the indemnitee's good faith belief
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that he or she has not breached or failed to perform his or her duties to the
Corporation; and (2) a written undertaking (hereinafter an "undertaking"), by or
on behalf of such indemnitee, to repay all amounts so advanced to the extent
that it is ultimately determined by final judicial decision from which there is
no further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Article Sixth or otherwise.
(2) A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for monetary damages for breach of
or failure to perform any duty resulting solely from his or her status as a
director, unless the person asserting liability proves that the breach or
failure to perform constitutes: (1) a willful failure to deal fairly with the
Corporation or its shareholders in connection with a matter in which the
director has a material conflict of interest; (2) a violation of the criminal
law, unless the director had reasonable cause to believe that his or her conduct
was lawful or no reasonable cause to believe that his or her conduct was
unlawful; (3) a transaction from which the director derived an improper personal
profit; or (4) willful misconduct. 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 WBCL is amended after the effective date of
these Restated and Amended 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 WBCL, 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, and only 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 may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by the number of
shareholders as would be necessary to authorize or take the action at a meeting
at which all shares entitled to vote were present and voted. Except as otherwise
required by law, 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) by the Board of Directors upon a request by the holders of at
least 10% in voting power of all shares of the
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Corporation entitled to vote at such meeting. Meetings of shareholders may be
held within or without the State of Wisconsin, as the By-Laws of the Corporation
may provide. The books of the Corporation may be kept outside the State of
Wisconsin 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.
TENTH: Notwithstanding anything contained in these Restated
and Amended 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: (i) two-thirds of the
members of the Board of Directors in office; (ii) eighty percent of shareholders
entitled to vote thereon; and (iii) two-third of the votes entitled to be case
by holders of voting shares other than voting shares beneficially owned by a
significant shareholder who is a party to the business combination 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.
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IN WITNESS WHEREOF, SERVICE AMERICA CORPORATION OF WISCONSIN
has caused this certificate to be signed by Janet L. Steinmayer, its Vice
President, General Counsel and Secretary, on this ____ day of ____, 2003.
SERVICE AMERICA CORPORATION OF
WISCONSIN
By:_______________________________________
Name: Janet L. Steinmayer
Title: Vice President, General Counsel
and Secretary
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CERTIFICATE
This is to certify that the foregoing Restated and Amended Articles of
Incorporation of Service America Corporation of Wisconsin contain amendments
requiring shareholder approval. The following information is set forth pursuant
to Section 180.1007(4)(b) of the Business Corporation Law of the State of
Wisconsin:
1. The name of the Corporation is Service America Corporation of
Wisconsin.
2. The text of each amendment as adopted is as set forth in the
foregoing Restated and Amended Articles of Incorporation.
3. The Restated and Amended Articles of Incorporation change the
number of authorized shares of the Corporation from 56,000 to 100. Upon the
filing of the Restated and Amended Articles of Incorporation, the Corporation
shall cancel all of the outstanding shares of stock of the Corporation and shall
reissue to Service America Corporation 100 shares of stock, which will
constitute all of the shares of stock authorized by the Corporation.
4. The date on which these amendments were adopted is
_________________, 2003.
5. The amendments were adopted in accordance with Section
180.1003 of the Business Corporation Law of the State o f Wisconsin.
IN WITNESS WHEREOF, Service America Corporation of Wisconsin has caused
this certificate to be signed by Janet L. Steinmayer, its Vice President,
General Counsel and Secretary, this ________ day of __________, 2003.
SERVICE AMERICA CORPORATION OF
WISCONSIN
By ________________________________
Janet L. Steinmayer
Its Vice President, General Counsel and
Secretary