EXHIBIT 3.5
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
VOLUME SERVICES, INC.
Volume Services, Inc. (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, DOES HEREBY
CERTIFY:
The name of the Corporation is Volume Services, Inc. The
Corporation was originally incorporated and filed its original Certificate of
Incorporation with the Secretary of State of the State of Delaware on June 14,
1973. The Corporation filed a Certificate of Amendment with the Secretary of the
State of Delaware on October 30, 1989, and a Restated Certificate of
Incorporation on August 5, 1992.
This Restated Certificate of Incorporation, which restates and
further amends the certificate of incorporation of the Corporation as heretofore
amended and restated, has been duly adopted in accordance with Sections 242 and
245 of the General Corporation Law of the State of Delaware ("DGCL") and by the
written consent of its stockholders in accordance with Section 228 of the DGCL.
The Corporation has received payment for its stock.
The certificate of incorporation of the Corporation, as
heretofore amended and restated, is hereby further amended and restated to read
in its entirety as follows:
FIRST: The name of the Corporation is Volume Services, Inc.
SECOND: The registered office and registered agent of the
Corporation in the State of Delaware is The Corporation Trust Company, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801.
THIRD: The purposes of the Corporation are to engage in any
lawful act or activity for which corporations may be organized under the DGCL.
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, 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 irrespective of the provisions of Section 242(b)(2) of the DGCL
(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 stockholders generally are entitled to vote.
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(b) 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 stockholders 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
stockholder vote in any manner not inconsistent with the laws of the State of
Delaware or this Restated Certificate of Incorporation, subject to the power of
the stockholders entitled to vote to amend, alter, change, add to or repeal the
By-Laws made by the Board of Directors. Notwithstanding anything contained in
this Restated Certificate 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 shall be
required in order for the stockholders 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 Delaware:
(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 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 DGCL, 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 DGCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer shall be made only upon delivery to the Corporation of an
undertaking (hereinafter 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 (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such
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expenses under this Article Sixth or otherwise.
(2) 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 (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. 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 DGCL
is amended after the effective date of this Restated Certificate 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 DGCL, 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 annual meeting for the year in
which his term expires 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. 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. Except as otherwise required by law and subject to the rights of the
holders of any series of Preferred Stock, special meetings of stockholders 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 25% in voting power of all shares of the
Corporation entitled to vote at such meeting. Meetings of stockholders may be
held within or without the State of Delaware, as the By-Laws of the Corporation
may provide. The books of the Corporation may be kept outside the State of
Delaware 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
stockholders for the transaction of business.
TENTH: Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least two-thirds in voting
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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 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.
* * *
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IN WITNESS WHEREOF, VOLUME SERVICES, INC. has caused this
certificate to be signed by Janet L. Steinmayer, its Executive Vice President,
General Counsel and Secretary, on this ____ day of ____, 2003.
VOLUME SERVICES, INC.
By:_______________________________________
Name: Janet L. Steinmayer
Title: Executive Vice President, General
Counsel and Secretary