Amended and Exhibit 3.2
Restated as of
March 1, 2002
BY-LAWS
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OF
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DOVER DOWNS ENTERTAINMENT, INC.
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ARTICLE I
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THE CORPORATION
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Section 1.1 Name. The title of this Corporation is Dover Downs
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Entertainment, Inc.
Section 1.2 Office. The registered office of this Corporation shall be
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located at P. O. Box 843, Dover, Delaware, or at such other place as the Board
of Directors may designate in accordance with Section 133 of the Delaware
Corporation Law.
Section 1.3 Seal. The corporate seal of the Corporation shall have
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inscribed thereon the name of the Corporation and the year of its creation
(1994) and the words "Incorporated Delaware".
Amended and
Restated as of
March 1, 2002
ARTICLE II
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STOCKHOLDERS
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Section 2.1 Annual Meeting. The annual meeting of stockholders shall
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be held at such place within or without the State of Delaware as the Board of
Directors from time to time determine.
Section 2.2 Special Meetings. Special meetings of stockholders for any
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purpose or purposes may be called at any time by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the Chairman of the
Executive Committee or the President and not by any other person.
Section 2.3 Notice of Meetings. Whenever stockholders are required or
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permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of
the meeting to each stockholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
Section 2.4 Adjournments. Any meeting of the stockholders, annual or
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special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
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Section 2.5 Quorum. At each meeting of stockholders, except where
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otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote
at the meeting, present in person or by proxy, shall constitute a quorum. In
the absence of a quorum, the stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner provided in Section 2.4 of
these by-laws until a quorum shall attend.
Section 2.6 Organization. Meetings of stockholders shall be presided
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over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in his
absence by the Chairman of the Executive Committee, if any, or in his absence
by a Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by
a chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Unless otherwise provided in the
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certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock of Common
Stock and ten votes for each share of Class A Common Stock held by such
shareholder which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A stockholder entitled to vote may authorize a proxy by means of
a writing, by telephone, by the Internet, by other forms of electronic
transmission or by any other manner permitted by law. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in
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person or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the Corporation.
Voting at meetings of stockholders need not be by written ballot and need not
be conducted by inspectors unless the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in person or by
proxy at such meeting shall so determine. At all meetings of stockholders for
the election of directors a plurality of the votes cast shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by
law or by the certificate of incorporation or these by-laws, be decided by the
vote of the holders of a majority of the outstanding shares of stock entitled
to vote thereon present in person or by proxy at the meeting, provided that
(except as otherwise required by law or by the certificate of incorporation or
these by-laws) the Board of Directors may require a larger vote upon any
election or question.
Section 2.8 Fixing Date for Determination of Stockholders of Record.
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In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion of exchange or stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. If no record date is fixed: (1)
the record date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; and (2) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
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stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 2.9 List of Stockholders Entitled To Vote. The Secretary shall
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prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.10 Action by Consent Of Stockholders. Unless prohibited by
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law or the rules and regulations of any national securities exchange on which
securities of the Corporation are listed, action required to be taken or which
may be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and stockholders shall have the
power to consent in writing, without a meeting, to the taking of any action.
Section 2.11 Notice of Stockholder Business at Stockholder Meeting. At
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the annual meeting or any special meeting of stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before a meeting, business must be a proper subject for
stockholder action under the Delaware General Corporation Law and must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the
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direction of the Board of Directors, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder of the Corporation who is
a stockholder of record at the time of giving of notice provided for in this
Section and who shall be entitled to vote at the meeting. For business to be
properly brought before a meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be in writing, delivered or mailed by
first class United States mail, postage prepaid, to the Secretary of the
Corporation and received in the form required by this Section and (a) with
respect to an annual meeting, not less than ninety days prior to the
anniversary of the prior year's annual meeting of stockholders, or (b) with
respect to a special meeting, not less than seven days following the day on
which notice of the special meeting has been mailed to stockholders or public
disclosure of such meeting was first made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (a) a brief description of the business desired to be
brought before the meeting, (b) as to the stockholder giving such notice (i)
the name and address, as they appear on the Corporation's stock ledger, of such
stockholder, (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder, and (iii) if the stockholder intends to
solicit proxies in support of such stockholder's proposal, a representation to
that effect; and (c) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall be
conducted at a meeting, except in compliance with the procedures set forth in
this Section. Stockholders shall also be required to comply with all applicable
requirements of the Securities Exchange Act of 1934 and any national securities
exchange on which the Corporation's shares shall be listed. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in compliance with the
provisions of this Section, and
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if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
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ARTICLE III
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BOARD OF DIRECTORS
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Section 3.1 Number; Qualifications. The Board of Directors shall
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consist of up to the number of directors provided for in the Corporation's
Certificate of Incorporation. At the time of nomination, a Director must own
not less than 500 shares of common stock in the Corporation.
Section 3.2 Election; Resignation; Removal; Vacancies. At each annual
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meeting of stockholders, the stockholders shall elect Directors to replace
those Directors whose terms then expire. Any Director may resign at any time
upon written notice to the Corporation. Stockholders may remove Directors only
for cause. Any vacancy occurring in the Board of Directors for any cause may be
filled only by the Board of Directors, acting by vote of a majority of the
Directors then in office, although less than quorum. Each Director so elected
shall hold office until the expiration of the term of office of the Director
whom he has replaced.
Section 3.3 Notice Of Nomination Of Directors. Nominations for the
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election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Notice of
nominations which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board. Nominations by a shareholder shall be made by
notice in writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation and received in the form
required by these By-laws not less than ninety days prior to the anniversary of
the prior year's annual meeting of stockholders or not less than seven days
following the day on which notice of any special meeting has been mailed to
stockholders calling for the election of directors. Each such notice shall set
forth (i) the name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee for the past five years and (iii) evidence of
such nominee's
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qualification under Section 3.1 to these By-laws. The Chairman of the meeting
may, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3.4 Non-Discrimination Statement. Consistent with the
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Corporation's equal employment opportunity policy, nominations for the election
of directors shall be made by the Board of Directors and accepted from
stockholders in a manner consistent with these By-Laws and without regard to
the nominee's race, color, ethnicity, religion, sex, age, national origin,
veteran status, handicap or disability.
Section 3.5 Regular Meetings. Regular meetings of the Board of
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Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notices thereof need not be given.
Section 3.6 Special Meetings. Special meetings of the Board of
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Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the Chairman of the Executive Committee, or
by the President. Reasonable notice thereof shall be given by the person
calling the meeting, not later than the second day before the date of the
special meeting.
Section 3.7 Telephonic Meetings Permitted. Members of the Board of
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Directors, or any committee designated by the Board, may participate in any
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting. No electronic
recording or stenographic transcription of any meeting of the Board or any
committee shall be permitted without the consent of a majority of the Board or
committee members present at the meeting and no recording or
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transcription made in violation of these By-laws shall be disclosed to any
third person, admissible in any proceeding or used in any fashion.
Section 3.8 Quorum; Vote Required For Action; Informal Action. At all
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meetings of the Board of Directors a majority of the whole Board shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation or these by-laws otherwise provide, the vote
of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. Unless otherwise restricted
by the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
or such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the Board
or committee.
Section 3.9 Organization. Meetings of the Board of Directors shall be
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presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by the Chairman of the Executive Committee, if any, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as a
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 3.10 Compensation Of Directors. The Directors and members of
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standing committees shall receive such fees or salaries as fixed by resolution
of the Executive Committee and in addition will receive expenses in connection
with attendance or participation in each regular or special meeting.
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ARTICLE IV
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COMMITTEES
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Section 4.1 Committees. The Board of Directors may, by resolution
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passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have power or authority in reference to amending the
certificate of incorporation of the Corporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange or all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of dissolution, or amending these by-laws. The Board of Directors
shall, at the annual organization meeting thereof, elect an Executive Committee
which shall consist of not more than three members, all of whom shall be
members of the Board of Directors. The Executive Committee shall have and may
exercise all of the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation to the fullest extent
permitted by law (as presently allowed under Section 141 (c) to the Delaware
General Corporation Law as revised effective July 1, 1996, and
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as may be allowed in the future pursuant to amendments or revisions to
applicable law). Any Director may be removed from any committee of the Board
with or without cause by the affirmative vote of a majority of the entire Board
of Directors.
Section 4.2 Committee Rules. Unless the Board of Directors otherwise
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provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these by-laws.
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ARTICLE V
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OFFICERS
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Section 5.1 Executive Officers; Election; Qualifications; Term of
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Office; Resignation; Removal; Vacancies. The officers of the Corporation shall
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consist of a President, Vice Presidents, Secretary, Assistant Secretaries,
Treasurer, Assistant Treasurers, General Counsel, and such other officers as
may from time to time be elected or appointed by the Board of Directors. Any
officer may resign at any time upon written notice to the Corporation. The
Board of Directors may remove any officer with or without cause at any time,
but such removal shall be without prejudice to the contractual rights of such
officer, if any, with the Corporation. Any number of offices may be held by the
same person. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of
the term by the Board of Directors at any regular or special meeting. In the
absence of any officer, the Board of Directors may delegate his power and
duties to any other officer or to any director for the time being.
Section 5.2 Duties Of The Chairman Of The Board. The Chairman of the
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Board shall preside at all meetings of the shareholders and the Board, shall
have general and active management of the business of the Corporation and shall
perform such duties as the Board of Directors may prescribe. The Chairman of
the Board shall not be deemed an executive officer of the Corporation if he is
a non-employee director and shall otherwise be an executive officer of the
Corporation only if specifically designated as such by the Board of Directors
at the time of his election or appointment.
Section 5.3 President. The President shall be the Chief Executive
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Officer of the Corporation, may execute in the name of the Corporation all
contracts and agreements authorized by the Board or the Executive Committee. He
may sign certificates of stock; he shall have general supervision and direction
of all the other officers of the Corporation; he shall submit a complete
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report of the operations and condition of the Corporation for the year to the
Chairman and to the directors at their regular meetings, and from time to time
shall report to the directors all matters which the interest of the Corporation
may require to be brought to their notice. He shall have the general powers and
duties usually vested in the office of a President of a corporation.
Section 5.4 Vice President - Finance. The Vice President - Finance
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shall be the Chief Accounting and Chief Financial Officer of the Corporation
and shall be responsible to the Board of Directors, the Executive Committee and
the President for all financial control and internal audit of the Corporation
and its subsidiaries. He shall perform such other duties as may be assigned to
him by the Board of Directors, the Executive Committee or the President.
Section 5.5 Vice Presidents. The Vice Presidents elected or appointed
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by the Board of Directors shall perform such duties and exercise such powers as
may be assigned to them from time to time by the Board of Directors, the
Executive Committee or the President. In the absence or disability of the
President, the Vice President designated by the Board of Directors, the
Executive Committee, or the President shall perform the duties and exercise the
powers of the President. A Vice President may sign and execute contracts and
other obligations pertaining to the regular course of his duties.
Section 5.6 Secretary. The Secretary shall be ex-officio Secretary of
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the Board of Directors and of the standing committees. He shall attend all
sessions of the Board, act as clerk thereof, record all votes and keep the
minutes of all proceedings in a book to be kept for that purpose. He shall
perform like duties for the standing committees when required. He shall see
that the proper notices are given of all meetings of stockholders and
directors, and perform such other duties as may be prescribed from time to time
by the Board of Directors, the Executive Committee, the Chairman or the
President, and shall be sworn to the faithful discharge of his duties.
Section 5.7 Treasurer. The Treasurer shall keep full and accurate
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accounts of receipts
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and disbursements in books belonging to the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors or Executive Committee. He shall disburse the funds of the
Corporation as may be ordered by the Board, the Executive Committee or the
President, taking proper vouchers therefor, and shall render to the President
and the Executive Committee and Directors, whenever they may require it, an
account of all his transactions as Treasurer, and of the financial condition of
the Corporation, and at the annual organization meeting of the Board a like
report for the preceding year.
Section 5.8 General Counsel. The General Counsel shall be the legal
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adviser of the Corporation and shall perform such services as the Chairman,
President, Board of Directors or Executive Committee may require.
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ARTICLE VI
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Stock
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Section 6.1 Certificates. Every holder of stock shall be entitled to
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have a certificate signed by or in the name of the Corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President of the
Corporation, certifying the number of shares owned by him in the Corporation.
Any of or all the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate, shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Section 6.2 Lost, Stolen Or Destroyed Stock Certificates; Issuance Of
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New Certificates. The Corporation may issue a new certificate of stock in the
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place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
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ARTICLE VII
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Indemnification
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Section 7.1. General. The Company shall indemnify, and advance Expenses
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(as hereinafter defined) to, Indemnitee (as hereinafter defined) to the fullest
extent permitted by applicable law in effect on the adoption of these By-Laws,
and to such greater extent as applicable law may thereafter from time to time
permit. The rights of Indemnitee provided under the preceding sentence shall
include, but shall not be limited to, the rights set forth in the other
Sections of this Article.
Section 7.2. Proceedings Other Than Proceedings By Or In The Right Of
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The Company. Indemnitee shall be entitled to the indemnification rights
- -----------
provided in this Section 7.2 if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Company. Pursuant to this Section
7.2, Indemnitee shall be indemnified against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with such Proceeding or any claim, issue or
matter therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal Proceeding, had no reasonable cause to believe
his conduct was unlawful.
Section 7.3. Proceedings By Or In The Right Of The Company. Indemnitee
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shall be entitled to the indemnification rights provided in this Section 7.3
to the fullest extent permitted by law if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to any threatened, pending or
completed Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 7.3, Indemnitee shall be
indemnified against Expenses,
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judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interest of the Company.
Section 7.4. Indemnification For Expenses Of A Party Who Is Wholly Or
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Partly Successful. Notwithstanding any other provision of this Article, to
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the extent that Indemnitee is, by reason of his Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not wholly successful
in such Proceeding but is successful, on the merits or otherwise, as to one
or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section
and without limitation, the termination of any claim, issue or matter in such
a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section 7.5. Indemnification For Expenses Of A Witness.
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Notwithstanding any other provision of this Article, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding,
he shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith.
Section 7.6. Advancement Of Expenses. The Company shall advance all
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reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within twenty days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
proceeding. Such statement or statements shall reasonably evidence the
Expenses incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
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repay any Expenses advanced if it shall ultimately be determined that
Indemnitee is not entitled to be indemnified against such Expenses.
Section 7.7. Procedure For Determination Of Entitlement To
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Indemnification.
- ---------------
(a) To obtain indemnification under this Article, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee
and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The determination of Indemnitee's
entitlement to indemnification shall be made not later than 60 days after
receipt by the Company of the written request for indemnification. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Indemnitee's entitlement to indemnification under any of
Sections 7.2, 7.3 or 7.4 of this Article shall be determined in the specific
case: (i) by the Board of Directors by a majority vote of a quorum of the
Board consisting of Disinterested Directors (as hereinafter defined); or (ii)
by Independent Counsel (as hereinafter defined), in a written opinion, if (A)
a Change of Control (as hereinafter defined) shall have occurred and
Indemnitee so requests, or (B) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs; or (iii) by
the stockholders of the Company; or (iv) as provided in Section 7.8 of this
Article.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section
7.7(b) of this Article, the Independent Counsel shall be selected as provided
in this Section 7.7(c). If a Change of Control shall not have occurred, the
Independent Counsel shall be selected by the Board of Directors, and the
Company shall give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change
19
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Restated as of
March 1, 2002
of Control shall have occurred, and if so requested by Indemnitee in his
written request for indemnification, the Independent Counsel shall be
selected by Indemnitee, and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the Company, as the case may be, may, within 7
days after such written notice of selection shall have been given, deliver to
the Company or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 7.13 of this Article, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel so
selected shall be disqualified from acting as such. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant to
Section 7.7(a) hereof, no Independent Counsel shall have been selected, or if
selected shall have been objected to, in accordance with this Section 7.7(c),
either the Company or Indemnitee may petition the Court of Chancery of the
State of Delaware for the appointment as Independent Counsel of a person
selected by the Court or by such other person as the Court shall designate,
and the person so appointed shall act as Independent Counsel under Section
7.7(b) hereof. The Company shall pay any and all reasonable fees and expenses
of Independent Counsel incurred by such Independent Counsel in acting
pursuant to Section 7.7(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 7.7(c),
regardless of the manner in which such Independent Counsel was selected or
appointed.
Section 7.8. Presumptions And Effect Of Certain Proceedings. If a
----------- ----------------------------------------------
Change of Control shall have occurred, Indemnitee shall be presumed (except
as otherwise expressly provided in this Article) to be entitled to
indemnification under this Article upon submission of a request for
indemnification in accordance with Section 7.7(a) of this Article, and
thereafter the Company shall have the burden of proof to overcome that
presumption in reaching a determination contrary to that
20
Amended and
Restated as of
March 1, 2002
presumption. Whether or not a Change of Control shall have occurred, if the
person or persons empowered under Section 7.7 of this Article to determine
entitlement to indemnification shall not have made a determination within 60
days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification unless (i)
Indemnitee misrepresented or failed to disclose a material fact in making the
request for indemnification, or (ii) such indemnification is prohibited by
law. The termination of any Proceeding described in any of Sections 7.2, 7.3,
or 7.4 of this Article, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
---------------
or its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful.
Section 7.9. Remedies Of Indemnitee.
----------- ----------------------
(a) In the event that (i) a determination is made pursuant
to Section 7.7 of this Article that Indemnitee is not entitled to
indemnification under this Article, (ii) advancement of Expenses is not
timely made pursuant to Section 7.6 of this Article, or (iii) payment of
indemnification is not made within five (5) days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Sections 7.7 or 7.8 of this Article, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in
any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. The
Company shall not oppose Indemnitee's right to seek any such adjudication or
21
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award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 7.7 of this Article that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 7.9 shall be conducted in all respects as a de novo trial, or
-------
arbitration, on the merits and Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall have occurred, in
any judicial proceeding or arbitration commenced pursuant to this Section 7.9
the Company shall have the burden of proving that Indemnitee is not entitled
to indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to
have been made pursuant to Sections 7.7 or 7.8 of this Article that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 7.9, unless (i) Indemnitee misrepresented or failed to disclose
a material fact in making the request for indemnification, or (ii) such
indemnification is prohibited by law.
(d) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 7.9
that the procedures and presumptions of this Article are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Article.
(e) In the event that Indemnitee, pursuant to this Section
7.9, seeks a judicial adjudication of, or an award in arbitration to enforce
his rights under, or to recover damages for breach of, this Article,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 7.13 of this Article)
actually and reasonably incurred by him in such judicial adjudication or
arbitration, but only if he prevails therein. If it shall be determined in
said judicial adjudication or arbitration that Indemnitee is entitled to
receive part but not all of the
22
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Restated as of
March 1, 2002
indemnification or advancement of Expenses sought, the expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall
be appropriately prorated.
Section 7.10. Non-Exclusivity And Survival Of Rights. The rights of
------------ --------------------------------------
indemnification and to receive advancement of Expenses as provided by this
Article shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Certificate of
Incorporation, the By-Laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. Notwithstanding any amendment,
alteration or repeal of any provision of this Article, Indemnitee shall,
unless otherwise prohibited by law, have the rights of indemnification and to
receive advancement of Expenses as provided by this Article in respect of any
action taken or omitted by Indemnitee in his Corporate Status and in respect
of any claim asserted in respect thereof at any time when such provision of
this Article was in effect. The provisions of this Article shall continue as
to an Indemnitee whose Corporate Status has ceased and shall inure to the
benefit of his heirs, executors and administrators.
Section 7.11. Severability. If any provision or provisions of this
------------ ------------
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the
remaining provisions of this Article (including without limitation, each
portion of any Section of this Article containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Article (including, without limitation, each portion of any Section of this
Article containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
23
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Restated as of
March 1, 2002
Section 7.12. Certain Persons Not Entitled To Indemnification Or
------------ --------------------------------------------------
Advancement Of Expenses. Notwithstanding any other provision of this Article,
- -----------------------
no person shall be entitled to indemnification or advancement of Expenses
under this Article with respect to any Proceeding, or any claim therein,
brought or made by him against the Company.
Section 7.13. Definitions. For purposes of this Article:
------------ -----------
(a) "Change in Control" means a change in control of the
Company of a nature that would be required to be reported in response to Item
5(f) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Securities Exchange Act
of 1934 (the "Act"), whether or not the Company is then subject to such
reporting requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner") (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such
percentage interest; (ii) the Company is a party to a merger, consolidation,
sale of assets or other reorganization, or a proxy contest, as a consequence
of which members of the Board of Directors in office immediately prior to
such transaction or event constitute less than a majority of the Board of
Directors thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute
at least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who
is or was a director,
24
Amended and
Restated as of
March 1, 2002
officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(e) "Indemnitee" includes any person who is, or is
threatened to be made, a witness in or a party to any Proceeding as described
in Sections 7.2, 7.3 or 7.4 of this Article by reason of his Corporate Status.
(f) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been, retained to represent:
(i) the Company or Indemnitee in any matter material to either such party, or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Article.
(g) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing
or any other proceeding whether civil, criminal, administrative or
investigative, except one initiated by an Indemnitee pursuant to Section
25
Amended and
Restated as of
March 1, 2002
7.9 of this Article to enforce his rights under this Article.
Section 7.14. Miscellaneous. Use of the masculine pronoun shall be
------------ -------------
deemed to include usage of the feminine pronoun where appropriate.
26
Amended and
Restated as of
March 1, 2002
ARTICLE VIII
------------
Miscellaneous
-------------
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be
----------- -----------
determined by resolution of the Board of Directors.
Section 8.2 Waiver Of Notice Of Meetings Of Stockholders, Directors,
----------- -------------------------------------------------------
And Committees. Any written waiver of notice, signed by the person entitled
- --------------
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 8.3 Interested Directors; Quorum. No contract or transaction
----------- ----------------------------
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if: (1) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board or the
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinter ested directors be less than a quorum; or (2) the material facts as to
his relationship or interest and as to
27
Amended and
Restated as of
March 1, 2002
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 8.4 Attorneys' Fees in Shareholder Actions. No stockholder
----------- --------------------------------------
shall bring any action against the Corporation or any officer or director of
the Corporation (in their respective capacities), unless such stockholder and
any person controlling such stockholder shall have entered an agreement with
the Corporation, reasonably satisfactory to it, requiring the losing party to
pay to the prevailing party the attorneys' fees and expenses incurred by the
prevailing party in such action. As used in this Section 8.4, the term
"person" shall have the meaning given it in Section 13(d) of the Securities
Exchange Act of 1934 ("Exchange Act"), and the term "controlling" shall have
the meaning given it in Rule 12b-2 under the Exchange Act. This provision
shall not apply to any action or claim arising before this provision shall
have become effective.
Section 8.5 Form Of Records. Any records maintained by the
----------- ---------------
Corporation in the regular course of its business, including its stock
ledger, books of account, and minute books, may be kept on, or be in the form
of, tape, disc, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into
clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to
inspect the same.
Section 8.6 Amendment Of By-Laws. The Board of Directors of the
----------- --------------------
Corporation is expressly authorized to adopt, amend or repeal the by-laws of
the Corporation by a vote of a majority of the entire Board. The stockholders
may make, alter or repeal any by-law whether or not
28
Amended and
Restated as of
March 1, 2002
adopted by them, provided however, that any such additional by-laws,
alterations or repeal may be adopted only by the affirmative vote of the
holders of 75% or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class), unless such additional by-laws,
alterations or repeal shall have been recommended to the stockholders for
adoption by a majority of the Board of Directors, in which event such
additional by-laws, alterations or repeal may be adopted by the affirmative
vote of the holders of a majority of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
Section 8.7 Restrictive Gaming Legend. All certificates issued for
----------- -------------------------
Shares of the $.10 par value Common Stock of the Corporation shall bear the
following legend:
"Any and all shares of Common Stock of the Corporation
are held subject to the condition that if (a) any
regulatory authority should request, determine or
otherwise advise that the holder or owner is
disqualified, or unsuitable, must qualify for or obtain a
license, or must submit an application and satisfy a
review process, including background checks, in order for
the Corporation or any subsidiary to obtain or retain a
license or a relicense, or otherwise avoid significant
penalties or business disadvantage, and (b) such holder
or owner shall fail to submit to qualification within
fifteen (15) days following such request, determination
or advice, or fail to be found qualified or suitable,
then (c) such holder or owner, at the request of the
Corporation or the appropriate regulatory authority,
shall promptly dispose of such holder's or owner's
interest in the Corporation's Common Stock and shall be
subject to any order of such regulatory body limiting
such holder's or owner's rights pending such disposition.
Without limiting the foregoing, any
29
Amended and
Restated as of
March 1, 2002
holder or owner that intends to acquire, directly or
indirectly, ten percent (10%) or more of the outstanding
common stock of the Corporation (regardless of class or
series) shall first notify the Corporation and obtain
prior written approval from the Delaware State Lottery
Office. Since money damages are inadequate to protect the
Corporation, it shall be entitled to injunctive relief to
enforce the foregoing provision."
Section 8.8 Restrictions on Transfer of Class A Common Stock.
----------- ------------------------------------------------
(a) Restriction. Shares of the Company's Class A Common
-----------
Stock (the "Shares") may be sold, transferred or disposed of only in
----
accordance with the following:
(i) Shares may be sold or transferred to any other
holder of Shares, provided that such holder has not acquired
Shares in contravention of these Bylaws; or
(ii) Shares may be sold, transferred or pass by
intestacy, will or inheritance to:
(A) one or more members of the immediate
family of a holder of Shares, provided that
such holder has not acquired Shares in
contravention of these Bylaws;
(B) a corporation all of the shares of
which are owned by holders of Shares (or
one or more members of the immediate family
of a holder of Shares), provided that no such
holder has acquired Shares in contravention
of these Bylaws;
(C) a trust all of the beneficial
interests of
30
Amended and
Restated as of
March 1, 2002
which are owned by holders of Shares (or one or
more members of the immediate family of a holder
of Shares), provided that no such holder has
acquired Shares in contravention of these Bylaws;
or
(D) a general or limited partnership all of
the partnership interests in which are owned by
holders of Shares (or one or more members of the
immediate family of a holder of Shares), provided
that no such holder has acquired Shares in
contravention of these Bylaws.
(b) Family Member Defined. For purposes of clause (a)(ii)
---------------------
above, "members of the immediate family" shall be limited to any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, and shall include adoptive relationships.
(c) Evidence of Compliance. Prior to any sale, transfer or
----------------------
disposition of Shares, the holder may be required, at the option of the
Company, to furnish appropriate evidence of compliance with these Bylaws,
including but not limited to an opinion of counsel.
(d) Conversion. Shares may be converted to shares of the
----------
Company's Common Stock and sold, transferred or disposed of without regard to
the limitations set forth in clause (a) above.
(e) Pledge. The bona fide pledge of Shares as collateral
------
security for indebtedness to the pledgee shall not be deemed to violate
clause (a) above, provided that the pledgee provides to the Company a written
undertaking not to sell, transfer or dispose of the Shares in violation of
these
31
Amended and
Restated as of
March 1, 2002
Bylaws.
(f) Legend. All certificates evidencing the Shares (and
------
replacement certificates issued in their stead) shall be inscribed with the
following legend (in addition to any other legends required hereunder or
under federal or state securities laws):
"The Shares of Class A Common Stock represented
by this certificate may be sold, transferred or otherwise
disposed of only in accordance with the terms and
conditions set forth in the Company's Bylaws, which terms
and conditions restrict, and in some instances prohibit,
the transfer or other disposition of such Shares and which
terms and conditions may only be amended by shareholders
owning 75% or more of the outstanding shares of Class A
Common Stock. The terms and conditions set forth in the
Company's Bylaws are incorporated herein by reference and
copies thereof are available for inspection or will be
mailed by the Company to any holder without charge within
five days after the Company's receipt of a written request
therefor."
(g) Vote Required to Amend. This Section 8.7 may only be
----------------------
amended by shareholders owning 75% or more of the outstanding Shares.
(h) Injunctive Relief. Since money damages would be
-----------------
inadequate, the Company or any holder of Shares shall be entitled to
injunctive relief to enforce this Section 8.7.
32