Exhibit 3.28
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COLONIAL DOWNS HOLDINGS, INC.
By unanimous consent in writing dated the 10th day of February, 1997, the
Board of Directors of Colonial Downs Holdings, Inc. (the "Corporation"), found
that the following proposed Amendment to the Restatement of the Articles of
Incorporation of the Corporation was in the best interests of the Corporation,
and directed that it be submitted to a vote of the shareholders. The Amended and
Restated Articles of Incorporation as proposed by the Board of Directors (the
"Board") and set forth below, were unanimously approved and adopted by the
shareholders of the Corporation by consent in writing dated the 10th day of
February, 1997.
A. Corporate Name. The name of the Corporation is Colonial Downs Holdings,
Inc. (the "Corporation").
B. Purposes and Powers. The purpose for which the Corporation is formed is
to engage in any lawful business. In addition, the Corporation shall have the
same powers as an individual to do all things necessary or convenient to carry
out its business and affairs.
C. Authorized Stock. The aggregate number of shares which the Corporation
shall have authority to issue, and par value per share, are as follows:
Class Par Number
and Series Value of shares
---------- ----- ---------
Class A Common $.01 12,000,000
Class B Common $.01 3,000,000
Preferred $.01 2,000,000
No holders of any class or series of stock shall have the preemptive right
to acquire unissued shares of any class or series of stock of the Corporation.
The Class A Common Stock and Class B Common Stock are collectively referred to
as the "Common Stock."
D. Class A Common Stock
Voting Rights. Each holder of the Class A Common Stock shall be entitled
to attend all special and annual meetings of the shareholders of the
Corporation, together with the holders of all other classes of stock entitled to
attend and vote at such meetings, to vote upon any matter or thing (including,
without limitation, the election of one or more directors) properly considered
and acted upon by the shareholders. Holders of Class A Common Stock are entitled
to one vote per share.
Liquidation Rights. In the event of any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, the holders of
Class A Common Stock, and holders of any class or series of stock entitled to
participate therewith, shall be entitled to participate in the distribution of
any assets of the Corporation remaining after the Corporation shall have paid,
or provided for payment of, all debts and liabilities of the Corporation and
after
the Corporation shall have paid, or set aside for payment to the holders of any
class of stock having preference over the Class A Common Stock in the event of a
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled. The holders of Class A Common Stock and Class B Common
Stock shall participate equally, on a per share basis, in any such distribution
of such assets.
Dividends. Dividends may be paid on the Class A Common Stock and on any
class or series of stock entitled to participate therewith when and as declared
by the Board; provided that holders of the Class A Common Stock and Class B
Common Stock will be entitled to participate equally, on a per share basis, in
any dividend or other distribution declared or made by the Board in respect of
the Common Stock. No dividend or other distribution shall be declared or made in
respect of Class A Common Stock unless at such time an equal (on a per share
basis) dividend or distribution is declared and made in respect of the Class B
Common Stock.
E. Class B Common Stock.
Voting Rights. Each holder of the Class B Common Stock shall be entitled
to attend all special and annual meetings of shareholders of the Corporation,
together with the holders of all other classes of stock entitled to attend and
vote at such meetings, to vote upon any matter or thing (including without
limitation, the election of one or more directors) properly considered and acted
upon by the shareholders, Holders of the Class B Common Stock are entitled to
five (5) votes per share generally, other than votes, approvals, or other
consensual rights with respect to (i) a merger, consolidation, or other business
combination of the Corporation or any of its material subsidiaries, (ii) a sale
of all or substantially all of the assets of the Corporation or any of its
material subsidiaries, or (iii) amendments to the Corporation's Articles of
Incorporation, as amended from time to time, or Bylaws, as amended from time to
time, that alter or affect the voting rights of the holders of Class B Common
Stock as to which, in each case, each holder of Class B Common Stock will be
entitled to one vote per share.
Liquidation Rights. In the event of any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the Class B Common Stock, and the holders of any class or series of stock
entitled to participate therewith shall become entitled to participate in the
distribution on any assets of the Corporation remaining after the Corporation
shall have paid, or provided for payment of all debts and liabilities of the
Corporation and after the Corporation shall have paid, or set aside for payment,
to the holders of any class of stock having preference over the Class B Common
Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled. The holders of Class A
Common Stock and Class B Common Stock shall participate equally, on a per share
basis, in any such distribution of any such assets.
Dividends. Dividends may be paid on the Class B Common Stock, and any
class or series of stock entitled to participate therewith when and as declared
by the Board; provided that Holders of the Class A Common Stock and Class B
Common Stock will be entitled to participate equally, on a per share basis, in
any dividend or other distribution declared or made by the Board in respect of
the Common Stock. No dividend or other distribution shall be declared or made in
respect of the Class B Common Stock unless at such time an equal (on a per share
basis) dividend or distribution is declared and made in respect of the Class A
Common Stock.
Conversion into Class A Common Stock. Each holder of Class B Common
Stock may, at its option, at any time convert any or all shares of Class B
Common Stock of such holder
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into the same number of shares of Class A Common Stock upon presentation of
certificates evidencing such shares of Class B Common Stock to the Corporation's
stock transfer agent accompanied by a written conversion request.
Restrictions on Transfer. The Class B Common Stock may not be sold,
assigned, pledged, hypothecated, or otherwise transferred to any person or
entity other than any of CD Entertainment Ltd., Jeffrey P. Jacobs, or members of
Mr. Jacobs' immediate family. A legend to such effect shall appear on each
certificate evidencing shares of Class B Common Stock.
F. Preferred Stock. The Board of Directors is authorized to have the
Corporation issue one or more series of shares of Preferred Stock, and to
provide for the designation, preferences, limitations and relative rights
thereof. The Board of Directors can fix and determine, among other things: (i)
whether the shares of such class or series shall have voting rights, in addition
to any voting rights provided by law, and if so, the terms of such voting
rights; (ii) the rate or rates (which may be fixed or variable) at which
dividends, if any, are payable on such series; (iii) whether the shares of such
series shall be subject to redemption or repurchase by the Corporation: (iv) the
amount or amounts payable upon shares of such series upon and rights of the
holders of such series in, the voluntary or involuntary liquidation, dissolution
or winding up, or any distribution of the assets of the Corporation, whether the
shares of such series shall be subject to the operation of a retirement or
sinking fund, and if so, the extent to and manner in which any such retirement
or sinking fund shall be applied to the repurchase or redemption of the shares
of such series for retirement or other corporate purposes and the terms and
provisions relative to the operation thereof; and (v) whether the shares of such
series shall be convertible into, or exchangeable for, shares of stock of any
other securities (including Common Stock) and, if so, the price or prices or the
rate or rates of conversion or exchange.
G. Certain Charter and Statutory Provisions. The number of Directors
constituting the Board of Directors shall be not less than four nor greater than
nine, as determined by resolution of the Board of Directors from time to time.
The terms of the Directors shall be staggered by dividing the total number of
Directors into three classes, as nearly equal in number as the total number of
Directors constituting the Board then permits, with any Director or Directors in
excess of the number divisible by three being assigned to Class 3 and Class 2,
as the case may be. The terms of Directors in Class 1 shall expire at the first
annual shareholders' meeting after their election (or until their respective
successors are duly elected and qualified or until their earliest death,
resignation, or removal); the terms of the Directors in Class 2 shall expire at
the second annual shareholders' meeting after their election (or until their
respective successors are duly elected and qualified or until their earliest
death, resignation, or removal); and the terms of the Directors in Class 3 shall
expire at the third annual shareholders' meeting after their election (or until
their respective successors are duly elected and qualified or until their
earliest death, resignation, or removal). Upon the expiration of the initial
staggered term of each director, directors shall be chosen for a term of three
years to succeed those whose terms expire.
H. Limitation on Liability. In any proceeding brought in the right of the
Corporation or by or on behalf of shareholders of the Corporation, the damages
accessed against an officer or director arising out of a single transaction,
occurrence, or course of conduct shall not exceed one dollar, unless the officer
or director engaged in willful misconduct or a knowing violation of the
criminal law or any federal or state securities law, including without
limitation, any claim of unlawful insider trading or manipulation of the market
for any security.
I. Repurchase Stock under the Virginia Horse Racing Act. The Corporation
may purchase, upon a vote of a majority of its shareholders, at fair market
value, as reasonably determined by the Board of Directors, any or the entire
interest of any shareholder who is or
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becomes unqualified for such position under Section 59.1-379 of the Code of
Virginia of 1950, as the same may be amended form time to time.
J. Indemnification of Directors, Officers and Others.
1. Indemnification. The Corporation shall indemnify an individual who
entirely prevails in the defense of any proceeding to which he was a party
because he is or was a proceeding. The Corporation shall also indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding if:
(1) he conducted himself in good faith; and
(2) he believed;
(a) in the case of conduct in his official capacity with the
Corporation, that his conduct was in its best interests; and
(b) in all other cases, that this conduct was at least not
opposed to its best interests; and
(3) in the case of any criminal proceeding, he had no reasonable
cause we to believe his conduct was unlawful.
A director's conduct with respect to an employee benefit plan for
a purpose he believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement that his
conduct was at least not opposed to the best interests of the Corporation.
The termination of a proceeding by judgment, order, settlement,
or conviction is not, of itself, determinative that the director did not meet
the standard of conduct described in the Paragraph J of these Articles.
Notwithstanding the foregoing, the Corporation shall not
indemnify a director under this Paragraph J of these Articles:
(1) in connection with a proceeding by or in the right of the
Corporation in which the director is adjudged liable to the Corporation; or
(2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he is adjudged liable on the basis that personal benefit was
improperly received by him.
Indemnification granted under this Paragraph J of these Articles
in connection with a proceeding by or in the right of the Corporation is limited
to reasonable expenses incurred in connection with the proceeding. The
definitions as set forth in Section 13.1-696 of the Code of Virginia of 1950, as
amended, as in effect from time to time, shall apply with respect to this
Paragraph J.
2. Advance for Expenses. The Corporation shall pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
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(a) the director furnishes the Corporation a written statement of
his good faith belief that he has met the standard of conduct described in
Section 1;
(b) the director furnishes the Corporation a written undertaking,
executed personally or on his behalf, to repay the advance if it is ultimately
determined that he did not meet the standard of conduct which undertaking shall
be an unlimited general obligation of the director but need not be secured and
may be accepted without reference to financial ability to make repayment); and
(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under Article 10 of
the Virginia Stock Corporation Act or Section 1 hereof.
3. Determination and Authorization of Indemnification. The Corporation
shall not indemnify a director under Section 1 unless authorized in the specific
case after a determination has been made that indemnification of the director is
permissible in the circumstances because he has met the standard of conduct set
forth in Section 1. The determination shall be made;
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(b) if such quorum cannot be obtained, by majority vote of a
committee duly designated by the Board of Directors (in which directors who are
parties may participate in such designation), consisting solely of two or more
directors not at the time parties to the proceeding;
(c) by special legal counsel:
(i) selected by the Board of Directors or its committee in
the manner prescribed in subsection (a) or (b) above;
(ii) if such a quorum of the Board of Directors cannot be
obtained and such a committee cannot be designated, selected
by a majority vote of the full Board of Directors, in which
directors who are parties may participate in such selection;
or
(d) by the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may not be
voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (c)
of this Section 3 to select counsel.
If a majority of the directors of the Corporation has changed after the
date of the alleged conduct giving rise to a claim for indemnification, the
determination that indemnification is permissible and the authorization of
indemnification and evaluation as to the reasonableness of expenses in a
specific case shall, at the option of the person claiming indemnification, be
made by special legal counsel agreed upon by the Board of Directors and such
person.
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4. Indemnification of Officers, Employees, Agents and Others. Each
officer and employee of the Corporation shall be entitled to indemnification
and advance expenses to the same extent as a director.
The Corporation may, to a lesser extent or to the same extent that the
Corporation is required to provide indemnification and make advances for
expenses to its directors, provide indemnification and make advances and
reimbursements for expenses to its agents, the directors, officers, employees
and agents of its subsidiaries and predecessor entities, and any person serving
any other legal entity in any capacity at the request of the Corporation, and
may contract in advance to do so. The determination that indemnification under
this paragraph is permissible, the authorization of such indemnification and the
evaluation as to the reasonableness of expenses in a specific case shall be made
as authorized from time to time by general or specific action of the Board of
Directors, which action may be taken before or after a claim for indemnification
is made, or as otherwise provided by law.
5. Insurance. The Corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer, employee or agent of
the Corporation, or who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee or agent,
whether or not the Corporation would have power to indemnify him against the
same liability under Section 1.
6. Application. Indemnity hereunder shall continue as to a person
who has ceased to have the capacity referred to above and shall inure to the
benefit of the heirs, executors and administrators of such a person.
DATED: February 27, 1997
/s/ Jeffrey P. Jacobs
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Jeffrey P. Jacobs, Chairman and CEO
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