AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
LAS VEGAS SANDS, INC.
Pursuant to the provisions of Nevada Revised Statutes, Title 7, Chapter 78,
the undersigned officers do hereby certify:
FIRST: The name of the corporation is
LAS VEGAS SANDS, INC.
SECOND: The Board of Directors of the corporation duly adopted the
following resolutions on November 6, 1997:
RESOLVED, that it is advisable in the judgment of the Board of
Directors of the corporation that the entire text of the Articles of
Incorporation of the corporation be amended and restated to read as
follows:
FIRST: The name of the corporation is
LAS VEGAS SANDS, INC.
SECOND: The location of the principal place of the corporation
within the State of Nevada is 3355 Las Vegas Boulevard South, Room 1A,
in the City of Las Vegas, County of Clark, State of Nevada, and the
Resident Agent in charge thereof is Lionel Sawyer & Collins, located at
1700 Bank of America Plaza, 300 South Fourth Street, Las Vegas, Nevada,
89101.
THIRD: The purpose for which the corporation is formed and the
nature of business proposed to be transacted and carried on by it shall
be
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limited to the following: (i) to construct, hold, own, manage, market
and operate a hotel, casino, resort, meeting, convention, retail and
entertainment complex known as the Venetian Casino Resort (the
"Property"), located at 3355 Las Vegas Boulevard, South Las Vegas,
Nevada, (ii) to engage in the casino gaming, hotel, and resort business
at the Property and elsewhere and any activity and business incidental,
directly related or similar thereto (including, without limitation, (a)
acting as the managing member of Venetian Casino Resort, LLC
("Venetian"), (b) owning and operating a meeting and convention
facility at the Property or other hotel/casino resorts operated by the
corporation and (c) owning and operating a retail and entertainment
mall at the Property known as the Grand Canal Shops Mall prior to its
transfer to a direct or indirect subsidiary of the Company and other
retail and entertainment malls at other hotel/casino resorts operated
by the corporation), (iii) to enter into and perform any casino lease
or casino management agreement to operate any casino to be located on
the Phase II Land (as defined in the Loan Documents (as defined below))
or any other casino owned or operated by an Affiliate of the
corporation or Venetian, (iv) to own equity interests in any Person
that (a) are engaged or proposed to be engaged in any business
described in this Article Third, (b) are formed to hold, own and
develop the Phase II Land and (c) are formed to acquire and hold
directly or indirectly equity interests in any Persons described in
clauses (iv)(a) and (b), (v) to enter into any transaction with any of
its Affiliates (as defined below) or Venetian to the extent permitted
under these Articles of Incorporation, and (vi) to engage in any
business or
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activity that is a reasonable extension, development or expansion
thereof or ancillary thereto, including any hotel, entertainment,
convention, trade show, meeting, recreation, retail sale or other
activity or business designed to promote, market, support, develop,
construct or enhance the casino gaming, hotel and resort business
operated by the corporation (including, without limitation, incurring
indebtedness or providing guarantees, security interests or others
forms of credit support in connection with the business activities
described above, to the extent permitted by these Articles of
Incorporation, and owning and operating joint ventures to supply
materials or services for the construction or operation of the
Property).
FOURTH: The authorized capital of the corporation shall be Three
Hundred Thousand and 00/100 Dollars ($300,000.00), consisting of Three
Million (3,000,000) shares of stock of the par value of Ten Cents
($.10) per share. Each such share, when issued, shall have one (1)
vote.
The corporation shall not issue any stock or securities except in
accordance with the provisions of the Nevada Gaming Control Act and the
Regulations thereunder. The issuance of any stock or securities in
violation thereof shall be ineffective and such stock or securities
shall be deemed not to be issued and outstanding until (1) the
corporation shall cease to be subject to the jurisdiction of the Nevada
Gaming Commission, or (2) the Nevada Gaming Commission shall by
affirmative action, validate said issuance or waive any defect in
issuance.
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No stock or securities issued by the corporation and no interest,
claim or charge therein or thereto shall be transferred in any manner
whatsoever except in accordance with the provisions of the Nevada
Gaming Control Act and the regulations thereunder. Any transfer in
violation thereof shall be ineffective until (1) the corporation shall
cease to be subject to the jurisdiction of the Nevada Gaming
Commission, or (2) the Nevada Gaming Commission shall, by affirmative
action, validate said transfer or waive any defect in said transfer.
If the Commission at any time determines that a holder of stock or
other securities of this corporation is unsuitable to hold such
securities, then until such securities are owned by persons found by
the Commission to be suitable to own them (a) the corporation shall not
be required or permitted to pay any dividend or interest with regard to
the securities, (b) the holder of such securities shall not be entitled
to vote on any matter as the holder of the securities, and such
securities shall not for any purposes be included in the securities of
the corporation entitled to vote, and (c) the corporation shall not pay
any remuneration in any form to the holder of the securities.
FIFTH: The members of the governing board of the corporation shall
be styled "Directors."
Subject to the limitations set forth in this Article Fifth, the
number of directors may, at any time or times, be fixed, increased or
decreased by a duly adopted amendment to these Articles of
Incorporation, or in such manner as shall be provided in the By-Laws of
the corporation or by an amendment to
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the By-Laws of the corporation duly adopted by either the Board of
Directors or the stockholders. At all times, at least one director
shall be designated by a stockholder resolution or written consent as
the "Stockholder Director." Any director serving as the Stockholder
Director shall remain the Stockholder Director until he or she ceases
to be a director or is removed as Stockholder Director by a stockholder
resolution or written consent. If the vacancy occurs due to the death,
disability or removal of a Stockholder Director, the Board of Directors
shall call a special meeting of stockholders at the earliest possible
date permitted under applicable law to elect a new Stockholder
Director.
The corporation shall, commencing at the time the indebtedness
under the Loan (as defined below) is incurred and continuing for so
long as the Loan remains outstanding, have at least one director (the
"Special Director") who is not, at the time of initial appointment and,
at any time during the one year period immediately preceding the time
of initial appointment, was not (a) an employee, officer, director,
stockholder or partner of the corporation, Venetian or any of their
Affiliates; (b) a customer, supplier or other Person (as defined below)
who derives more than 10% of its revenues from its activities with the
corporation, Venetian or any of their Affiliates; (c) a Person or other
entity controlling or under common control with any such employee,
officer, director, stockholder, partner, customer, supplier or other
Person; or (d) a member of the immediate family of any such employee,
officer, director, stockholder, partner, customer, supplier or other
Person; except that, in each case, the Special Director may hold a
non-controlling interest in, and may act
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as a director and/or officer of, Affiliates of the corporation or
Venetian; provided that, (i) such Affiliates do not transact more than
a de minimis portion of their business with the corporation, Venetian,
or any of their Affiliates which is currently involved in, or will in
the future be involved in, the development of the Property (a "Project
Affiliate"), or any Affiliate which owns a direct or indirect interest
in any Project Affiliate, and (ii) the aggregate value of such
non-controlling interest comprises only a minor portion of the Special
Director's net worth. The Special Director may retain counsel, at the
corporation's expense, to advise the Special Director as to his or her
qualifications and duties as set forth herein. For purposes of these
Articles of Incorporation, an "Affiliate" of any Person shall mean any
Person that, directly or indirectly, controls or is controlled by, or
is under direct or indirect common control with, such Person; provided,
that, the corporation and Venetian shall not be deemed Affiliates for
purposes of these Articles of Incorporation. "Control," as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the owner ship
of voting securities or by contract or otherwise. "Loan," as used
herein shall mean (i) any indebtedness of the corporation and Venetian
under the Credit Agreement, among the corporation, Venetian, and the
lenders named therein, Goldman Sachs Credit Partners, L.P., as arranger
and syndication agent, and The Bank of Nova Scotia, as administrative
agent, as revised, amended, modified or restated, (ii) any indebtedness
of the corporation and
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Venetian under the credit agreement between the corporation,
Venetian, and GMAC Commercial Mortgage Corporation, as revised,
amended, modified or restated, (iii) any indebtedness under the 12-1/4%
Mortgage Notes due 2004, issued by the corporation and Venetian
pursuant to the Indenture, among the corporation, Venetian, certain
guarantors named therein and First Trust National Association, as
trustee, as revised, amended, modified or restated, or (iv) any
indebtedness under the 14-1/4% Senior Subordinated Notes due 2005,
issued by the corporation and Venetian pursuant to the Indenture, among
the corporation, Venetian, certain guarantors named therein and First
Union National Bank, as trustee, as revised, amended, modified or
restated. "Person" shall mean any individual, corporation, limited
liability company, partnership, joint venture, estate trust,
unincorporated association, any federal, state, county or municipal
government or any bureau, department or agency thereof and any
fiduciary acting in such capacity on behalf of any of the foregoing.
In the event of the death, incapacity, resignation or removal of
the Special Director, during the period in which the corporation is
required to have a Special Director, the Board of Directors or the
stockholders, by vote at a duly held meeting of the stockholders or by
unanimous written consent, shall promptly appoint a replacement Special
Director satisfying the requirements of the foregoing paragraph. To the
extent a Special Director receives compensation, it will be paid by
the corporation from its own funds.
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In accordance with N.R.S. 78.330(3), in all matters over which the
Board of Directors shall have voting power, the Special Director and
the other directors shall each have one vote and the Stockholder
Director shall have a number of votes equal of the total number of
votes held by the Special Director and the other directors plus one.
Except as specifically set forth in this Article FIFTH, the rights of
the stockholders and directors of the corporation under applicable law
shall not be limited or otherwise affected.
SIXTH: The capital stock of the corporation, after the amount of
the subscription price has been paid, shall not be subject to
assessment to pay the debts of the corporation, and no stock issued as
fully paid shall be assessable or assessed, nor shall the private
property of the stockholders, directors or officers of this corporation
be subject to the payment of any corporate debts to any extent
whatsoever.
SEVENTH: The corporation shall have perpetual existence.
EIGHTH: Every person who was or is a party, or is threatened to be
made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of
the fact that he or a person of whom he is the legal representative is
or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director or officer of another
corporation, or as its representative in a partner ship, joint venture,
trust or other enterprise, shall be indemnified and held harmless to
the fullest extent legally permissible under the laws of the State of
Nevada from time to time against all expenses, liability and loss
(including
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attorneys' fees, judgments, fines and amounts paid or incurred in
connection therewith). Such right of indemnification shall be a
contract right which may be enforced in any manner desired by such
person. Such right of indemnifica tion shall not be exclusive of any
other right which such directors, officers or representatives may have
or hereafter acquire, and, without limiting the generality of such
statement, they shall be entitled to their respective rights of
indemnification under any by-law, agreement, vote of stockholders,
provision of law, or otherwise, as well as their rights under this
Article.
The personal liability of a director or officer of the corporation
or its stockholders shall be limited to the full extent provided by
Nevada law for damages for breach of fiduciary duty as an officer or
director. This provision shall not eliminate the liability of a
director or officer for acts or omissions which involve intentional
misconduct, fraud, a knowing violation of the law, or the payment of
dividends in violation of N.R.S. 78.300.
Expenses of directors and officers incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as
they are incurred and in advance of the final disposition of the
action, suit or proceed ing, upon receipt of and undertaking by or on
behalf of the director or officer to repay the amount if it is
ultimately determined by a court of competent jurisdiction that he is
not entitled to be indemnified by the corporation. This does not affect
the rights to advancement of expenses which corporate personnel other
than directors or officers may be entitled under any contract or
otherwise by law.
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Without limiting the application of the foregoing, the Board of
Directors may adopt by-laws from time to time with respect to
indemnifica tion, to provide at all times the fullest indemnification
permitted by the laws of the State of Nevada, and may cause the
corporation to purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of
another corporation, or as its representative in a partnership, joint
venture, trust or other enterprise against any liability asserted
against such person and incurred in any such capacity or arising out of
such status, whether or not the corporation would have the power to
indemnify such person.
NINTH: Unless otherwise determined by the Board of Directors, no
holder of stock of the corporation shall be entitled, as a matter of
right, to purchase or subscribe for any stock of any class which the
corporation may issue or sell, whether or not exchangeable for any
stock of the corporation of unissued shares authorized by the Articles
of Incorporation of the corporation as originally filed or by any
amendment thereof, or out of shares of stock of the corporation
acquired by it after the issue thereof, and whether issued for cash,
labor performed, personal property, real property, or leases thereof,
nor shall such person be entitled to any right of subscription to any
thereof; nor, unless otherwise determined by the Board of Directors,
shall any holder of any shares be entitled to such, as a matter of
right, to purchase or subscribe for any obligation which the
corporation may issue or sell that shall be convertible
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into or exchangeable for any shares of the stock of its capital stock
of any class or classes.
TENTH: Commencing at the time the indebtedness under the Loan is
incurred and continuing for so long as the Loan remains outstanding,
the unanimous affirmative vote of all of the members of the Board of
Directors (including, without limitation, the Special Director) shall
be necessary to authorize the corporation on its own behalf, or, in its
capacity as managing member of Venetian, on behalf of Venetian, to (i)
cause Venetian or any of its direct or indirect subsidiaries to (a)
file a bankruptcy, insolvency or reorganization petition or otherwise
institute insolvency proceedings or otherwise seek any relief under any
laws relating to the relief from debts or the protection of debtors
generally for the corporation, Venetian or any of its direct or
indirect subsidiaries; (b) seek or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator, custodian or any
similar official for it or all or any portion of the properties of the
corporation Venetian, or any of its direct or indirect subsidiaries; or
(c) make any general assignment for the benefit of the creditors of the
corporation, Venetian or any of its direct or indirect subsidiaries; or
(ii)(a) dissolve, liquidate, merge or consolidate the corporation or
Venetian with or into any Person or convey or transfer all or
substantially all of its properties and assets to any Person, except as
permitted by the documents evidencing, securing or otherwise relating
to the Loan (the "Loan Documents"); (b) engage, or cause or permit
Venetian to engage, in any transaction or joint activity of any kind
with an
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Affiliate, to the extent inconsistent with the provisions of the Loan
Documents; (c) amend the organizational documents of the corporation or
Venetian in any way bearing upon the maintenance of the corporation's
or Venetian's separate identity, except as permitted under the Loan
Documents; or (d) voluntarily terminate or amend, or cause or permit
Venetian to terminate or amend, the Amended and Restated Reciprocal
Easement, Use and Operating Agreement, among Venetian, Grand Canal
Shops Mall Construction, LLC and Grand Canal Shops Mall, LLC and the
Sale and Contribution Agreement, among Venetian, Grand Canal Shops Mall
Construction, LLC and Grand Canal Shops Mall, LLC (or any similar
replacement agreement).
ELEVENTH: So long as any of the Loan remains outstanding, the Board
of Directors shall not authorize the corporation or Venetian to take
title to any personal or real property other than in the name of the
corporation or Venetian, as applicable.
TWELFTH: So long as the Loan remains outstanding, the corporation
shall not, and shall not permit Venetian to, commingle its property
with the property of any of its Affiliates, except as permitted under
the Loan Documents.
THIRTEENTH: So long as the Loan remains outstanding, the
corporation shall, and shall cause Venetian to, (a) pay solely from its
assets, or Venetian's assets, as applicable, all obligations of any
kind incurred by it and not pay from its assets, or Venetian's assets,
as applicable, the obligations of any other Person, except to the
extent otherwise expressly permitted under
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the Loan Documents; (b) conduct business solely in its own name and
hold itself out as a separate entity; (c) not enter into or be a party
to any transaction with any Affiliate, except on terms which are no
less favorable to the corporation (or to Venetian, as applicable) than
would be obtained in a comparable arm's length transaction with an
unrelated third party, except as permitted under the Loan Documents;
(d) not acquire obligations or securities of its stockholders or
members or any Affiliates of such stockholders or members, except to
the extent otherwise expressly permitted under the Loan Documents; (e)
not make loans to any other Person or buy or hold evidence of
indebtedness issued by any other Person, except as permitted under the
Loan Documents; (f) maintain its bank accounts, books and records on a
separate basis from those of any other Person and maintain a principal
executive and administrative office through which its business is
conducted separate from that of any Affiliate; provided, however, that
the corporation (or Venetian, as applicable) and any of its Affiliates
may have offices in the same location provided there is a fair and
appropriate allocation of overhead costs, if any, among the corporation
(or Venetian, as applicable) and/or any such Affiliate, and each of the
corporation (or Venetian, as applicable) and any such Affiliate bears
its fair share of such costs; (g) disclose in any consolidated
financial statements for a group of which the corporation is a member,
the corporation's separate legal existence and indicate that the assets
and liabilities of the corporation are intended to be available only to
the creditors of the corporation; (h) observe all corporate or limited
liability company formalities
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regarding its existence, including, without limitation, paying the
salaries of its own employees, if any (or paying a proportionate share
of the salary of any employee of any Affiliate who performs work for
both the corporation (or Venetian, as applicable) and such Affiliate),
preparing, filing and paying all taxes on the corporation (or Venetian,
as applicable) and, in the case of the corporation, conducting regular
meetings (at least once annually) of the Board of Directors and
memorializing the determinations of the Board of Directors on all
significant transactions; (i) use separate stationery, invoices and
checks; (j) correct any known misunderstanding regarding its separate
identity; (k) not identify itself as a division of any other Person;
and (l) not amend Articles Third, Fifth, Tenth, Eleventh, Twelfth,
Thirteenth and Fourteenth of these Amended and Restated Articles of
Incorporation in any material manner, except as permitted under the
Loan Documents. Nothing hereinabove contained shall in any way limit
the ability of: (i) the corporation to pay dividends to its
stockholders or (ii) Venetian to make distributions to its members.
FOURTEENTH: So long as the Loan remains outstanding, the
corporation shall not be, and the corporation shall not permit Venetian
to be, the obligor or guarantor of, or otherwise be responsible for,
the payment of any obligations for borrowed money, except as permitted
under the Loan Documents.
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FURTHER RESOLVED, that a special meeting of stockholders be and it is
hereby called and that notice be given in the manner prescribed by the Bylaws of
the corporation and by Nevada Revised Statutes, Title 7, Chapter 78, unless such
stockholders shall waive the notice of meeting in writing or unless all of said
stockholders shall dispense with the holding of a meeting and shall take action
upon the proposed amended and restated Articles of Incorporation (the "Amended
and Restated Articles") by a consent in writing signed by them; and
FURTHER RESOLVED, that, in the event that the stockholders shall adopt the
Amended and Restated Articles by a vote in favor thereof by at least a majority
of the voting power or by a written consent in favor thereof signed by all of
them without a meeting, the corporation is hereby authorized to prepare and
execute by its President or a Vice President and by its Secretary or an
Assistant Secretary a certificate setting forth the Amended and Restated
Articles and to cause the same to be filed pursuant to the provisions of Nevada
Revised Statutes, Title 7, Chapter 78.
THIRD: The total number of outstanding shares having voting power of the
corporation is 50,001, and the total number of votes entitled to be cast by the
holders of all such outstanding shares is 50,001.
FOURTH: The holders of all of the outstanding shares having voting power
dispensed with the holding of a meeting of stockholders and adopted the
amendments and restatement herein certified by a consent in writing signed by
all of them. Signed on November 6, 1997.
Las Vegas Sands, Inc.
By: /s/ William P. Weidner
------------------------
Name: William P. Weidner
Title: President
By: /s/ David Friedman
------------------------
Name: David Friedman
Title: Secretary
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STATE OF NEVADA)
ss.
COUNTY OF CLARK)
This instrument was acknowledged before me on November 10, 1997 by William
P. Weidner as President of Las Vegas Sands, Inc.
/s/ Bonnie R. Bruce
------------------------------------------
NOTARY PUBLIC
Appointment Number: 97-0398-1
My commission expires: January 24, 2001