EXHIBIT 3.7
ARTICLES OF INCORPORATION
OF
HOMETOWN BUFFET MERGER COMPANY, INC.
The undersigned incorporator, being a natural person 18 years of age or
older, in order to form a corporate entity under Minnesota Statutes, Chapter
302A, hereby adopts the following Articles of Incorporation:
ARTICLE I
The name of this Corporation is "HomeTown Buffet Merger Company, Inc."
ARTICLE II
The registered office of this Corporation is located at 1460 Buffet
Way, Eagan, Minnesota 55121.
ARTICLE III
This Corporation is authorized to issue an aggregate total of 1,000
shares, all of which shall be designated Common Stock, having a par value of
$0.01 per share.
ARTICLE IV
The name and address of the incorporator of this Corporation is as
follows:
Steven R. Fenlon
Faegre & Benson LLP
220 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
ARTICLE V
No shareholder of this Corporation shall have any cumulative voting
rights.
ARTICLE VI
No shareholder of this Corporation shall have any preemptive rights by
virtue of Section 302A.413 of the Minnesota Statutes (or any similar provisions
of future law) to subscribe for, purchase or acquire (i) any shares of this
Corporation of any class or series, whether unissued or now or hereafter
authorized, or (ii) any obligations or other securities convertible into or
exchangeable for (or that carry any other right to acquire) any such shares,
securities or obligations, or (iii) any other rights to purchase any such
shares, securities or obligations. This Corporation shall have the power,
however, in its discretion to grant such
rights by agreement or other instrument to any person or persons (whether or not
they are shareholders).
ARTICLE VII
The names of the first directors of this Corporation are as follows:
Kerry Kramp, and
R. Michael Andrews, Jr.
ARTICLE VIII
Any action required or permitted to be taken at a meeting of the Board
of Directors of this Corporation not needing approval by the shareholders under
Minnesota Statutes, Chapter 302A, may be taken by written action signed by the
number of directors that would be required to take such action at a meeting of
the Board of Directors at which all directors are present.
ARTICLE IX
No director of this Corporation shall be personally liable to this
Corporation or its shareholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article shall
not eliminate or limit the liability of a director to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to this
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction
from which the director derived an improper personal benefit or (v) for any act
or omission occurring prior to the effective date of this Article. No amendment
to or repeal of this Article shall apply to or have any effect on the liability
or alleged liability of any director of this Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of
September, 2003.
/s/ Steven R. Fenlon
____________________________________
Steven R. Fenlon
ARTICLES OF MERGER
OF
HOMETOWN BUFFET, INC., A DELAWARE CORPORATION
INTO
HOMETOWN BUFFET MERGER COMPANY, INC., A MINNESOTA CORPORATION
These Articles of Merger, dated as of September 26, 2003, relate to the
merger (the "Merger") of HomeTown Buffet, Inc., a Delaware corporation
("HomeTown DE"), with and into HomeTown Buffet Merger Company, Inc., a Minnesota
corporation ("HomeTown MN" and, together with HomeTown DE, sometimes referred to
as the "Constituent Corporations").
1. An Agreement and Plan of Merger, dated as of September 26, 2003 (the
"Plan of Merger"), in fully executed form, is attached hereto as Exhibit A. As
provided in the Plan of Merger, HomeTown MN shall continue as the surviving
corporation under the name "HomeTown Buffet, Inc."
2. The Merger shall be effective at 11:59 p.m., Central time, on
September 30, 2003.
3. The Plan of Merger was approved and adopted by each of the
Constituent Corporations in accordance with Chapter 302A of the Minnesota
Statutes.
Each Constituent Corporation has caused these Articles of Merger to be
signed by its duly authorized officer as of the date first written above.
HOMETOWN BUFFET, INC., a Delaware corporation
/s/ Kerry Kramp
_______________________________________________
Kerry Kramp, Chief Executive Officer
HOMETOWN BUFFET MERGER COMPANY, INC.,
a Minnesota corporation
/s/ Kerry Kramp
_______________________________________________
Kerry Kramp, Chief Executive Officer
AGREEMENT AND PLAN OF MERGER
BETWEEN
HOMETOWN BUFFET, INC., A DELAWARE CORPORATION,
AND
HOMETOWN BUFFET MERGER COMPANY, INC., A MINNESOTA CORPORATION
This Agreement and Plan of Merger (this "Agreement"), dated as of the
26th day of September 2003, is between HomeTown Buffet, Inc., a Delaware
corporation ("HomeTown DE"), and HomeTown Buffet Merger Company, Inc., a
Minnesota corporation ("HomeTown MN" and, together with HomeTown DE, sometimes
referred to as the "Constituent Corporations").
Whereas, HomeTown DE has issued and outstanding 100 shares of common
stock, $0.01 par value, on the date hereof;
Whereas, HomeTown MN has issued and outstanding 100 shares of common
stock, $0.01 par value, on the date hereof; and
Whereas, the directors and sole shareholder of each of the Constituent
Corporations believe that it is in the best interests of the Constituent
Corporations that HomeTown DE be merged with and into HomeTown MN, with HomeTown
MN continuing as the surviving corporation (the "Merger"), in accordance with
the Minnesota Business Corporation Act (the "MBCA") and the Delaware General
Corporation Law (the "DGCL"), and on the terms and conditions of this Agreement.
Now, therefore, the parties agree as follows:
1. Merger. Pursuant to the applicable provisions of the DGCL and the
MBCA, HomeTown DE shall be merged with and into HomeTown MN, with HomeTown MN
being the surviving corporation.
2. Effective Time. The Merger shall be effective at 11:59 p.m., Central
time, on September 30, 2003 (the "Effective Time").
3. Corporate Charters and Bylaws. The articles of incorporation and
bylaws of HomeTown MN immediately before the Effective Time shall be the
articles of incorporation and bylaws of the surviving corporation immediately
after the Effective Time, except that Article I of the articles shall be amended
to read "The name of the Corporation is HomeTown Buffet, Inc."
4. Board of Directors and Officers. The directors and officers of
HomeTown DE immediately before the Effective Time shall be the directors and
officers of HomeTown MN immediately after the Effective Time.
5. Capital Stock and Other Interests. At the Effective Time, the
capital stock of the Constituent Corporations shall be treated as follows:
(a) Each share of common stock of HomeTown DE issued and
outstanding immediately before the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into one share of common stock of HomeTown MN.
(b) Each share of common stock of HomeTown MN issued and
outstanding immediately before the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
cancelled, and no consideration therefor shall be payable to the
holder.
6. Certificate and Articles of Merger. In accordance with this
Agreement and for the purpose of carrying out the Merger, each Constituent
Corporation shall cause its officers to prepare and file a Certificate of Merger
or Articles of Merger (as the case may be) with the Secretary of State of its
state of incorporation.
7. Termination or Abandonment. This Agreement may be terminated and the
Merger may be abandoned at any time before the Effective Time by mutual written
consent of the Board of Directors of each of the Constituent Corporations,
notwithstanding the prior approval of this Agreement by the sole shareholder of
each of the Constituent Corporations. If this Agreement is terminated pursuant
to this Section 7, this Agreement shall become void.
8. Amendment. No amendment to this Agreement will be valid unless it is
in writing and approved by the Board of Directors of each Constituent
Corporation before the Effective Time.
9. Reorganization. The parties intend that the Merger qualify as a
reorganization under Section 368(a)(1) of the Internal Revenue Code of 1986, as
amended.
In witness whereof, each Constituent Corporation has caused this
Agreement to be signed by its duly authorized officer, as of the date first
written above.
HOMETOWN BUFFET, INC., a Delaware corporation
/s/ Kerry Kramp
____________________________________________________
Kerry Kramp, Chief Executive Officer
HOMETOWN BUFFET MERGER COMPANY, INC.,
a Minnesota corporation
/s/ Kerry Kramp
____________________________________________________
Kerry Kramp, Chief Executive Officer