EXHIBIT 3.2
HOLLYWOOD PARK, INC.
RESTATED BYLAWS
AS OF
APRIL 13, 1998
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - STOCKHOLDERS................................................. 1
Section 1. Annual Meeting......................................... 1
Section 2. Special Meetings: Notice............................... 3
Section 3. Notice of Meetings..................................... 3
Section 4. Quorum................................................. 3
Section 5. Organization........................................... 4
Section 6. Conduct of Business.................................... 4
Section 7. Proxies and Voting..................................... 4
Section 8. Stock List............................................. 5
Section 9. Consent of Stockholders in Lieu of Meeting............. 5
ARTICLE II - BOARD OF DIRECTORS........................................... 6
Section 1. Number, Election and Term of Directors................. 6
Section 2. Newly Created Directorships and Vacancies.............. 7
Section 3. Regular Meetings....................................... 7
Section 4. Special Meetings....................................... 8
Section 5. Quorum................................................. 8
Section 6. Participation in Meetings By Conference Telephone...... 8
Section 7. Conduct of Business.................................... 8
Section 8. Powers................................................. 8
Section 9. Compensation of Directors.............................. 9
Section 10. Director Emeritus...................................... 9
ARTICLE III - COMMITTEES................................................... 10
Section 1. Committees of the Board of Directors................... 10
Section 2. Conduct of Business.................................... 10
Section 3. Standing Executive Committee........................... 11
Section 4. Audit Committee........................................ 12
Section 5. Compensation Committee................................. 13
ARTICLE IV - OFFICERS..................................................... 13
Section 1. Generally.............................................. 13
Section 2. Chairman of the Board.................................. 13
Section 3. Vice Chairman of the Board............................. 14
Section 4. President.............................................. 14
Section 5. Chief Operating Officer................................ 14
Section 6. Vice Presidents........................................ 15
-i-
Page
----
Section 7. Treasurer................................................... 15
Section 8. Assistant Treasurer......................................... 15
Section 9. Secretary................................................... 16
Section 10. Assistant Secretary......................................... 16
Section 11. Controller.................................................. 16
Section 12. Delegation of Authority..................................... 16
Section 13. Removal..................................................... 16
Section 14. Resignations................................................ 17
Section 15. Action with Respect to Securities of Other Corporations..... 17
ARTICLE V - STOCK............................................................. 17
Section 1. Certificates of Stock....................................... 17
Section 2. Transfers of Stock.......................................... 17
Section 3. Record Date................................................. 17
Section 4. Lost, Stolen or Destroyed Certificates...................... 18
Section 5. Regulations................................................. 19
ARTICLE VI - NOTICES........................................................... 19
Section 1. Notices..................................................... 19
Section 2. Waivers..................................................... 19
ARTICLE VII - MISCELLANEOUS..................................................... 19
Section 1. Facsimile Signatures........................................ 19
Section 2. Corporate Seal.............................................. 20
Section 3. Reliance upon Books, Reports and Records.................... 20
Section 4. Fiscal Year................................................. 20
Section 5. Time Periods................................................ 20
ARTICLE VIII- INDEMNIFICATION OF DIRECTORS AND OFFICERS......................... 20
Section 1. Right to Indemnification.................................... 20
Section 2. Right to Advancement of Expenses............................ 21
Section 3. Right of Indemnitee to Bring Suit........................... 21
Section 4. Non-Exclusivity of Rights................................... 22
Section 5. Insurance................................................... 22
Section 6. Indemnification of Employees and Agents of the Corporation.. 22
ARTICLE IX - AMENDMENTS........................................................ 23
-ii-
RESTATED BYLAWS
OF
HOLLYWOOD PARK, INC.
--------------------
(HEREINAFTER REFERRED TO AS THE "CORPORATION")
ARTICLE I - STOCKHOLDERS
--------- ------------
Section 1. Annual Meeting.
---------- --------------
(1) An annual meeting of the stockholders, for the election of directors to
succeed those whose terms expire and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, on such
date, and at such time as the Board of Directors shall each year fix, which date
shall be within 13 months of the last annual meeting of stockholders.
(2) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of the notice provided for in this bylaw, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this bylaw.
(3) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (2) of this
bylaw, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not less than 90 days nor more than 120 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 30 days or delayed by
more than 60 days from such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); (b)
as to any other business that the stockholder proposes to bring before the
meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the capital stock of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(4) Notwithstanding anything in the second sentence of paragraph (3) of
this bylaw to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
(5) Only such persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible to serve as directors and only such
business shall be conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
these Bylaws. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in these Bylaws
and, if any proposed nomination or business is not in compliance with these
Bylaws, to declare that such defective proposed nomination or business shall be
disregarded.
(6) For purposes of these Bylaws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(7) Notwithstanding the foregoing provisions of this bylaw, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
bylaw. Nothing in this bylaw shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
-2-
Section 2. Special Meetings: Notice.
---------- ------------------------
Special meetings of the stockholders, other than those required by statute,
may be called at any time by the Chairman of the Board or by a majority of
directors then in office pursuant to a resolution approved by the Board of
Directors. Notice of every special meeting, stating the place, date, time and
purpose, shall be given by mailing, postage prepaid, at least 10 but not more
than 60 days before each such meeting, a copy of such notice addressed to each
stockholder of the Corporation at his post office address as recorded on the
books of the Corporation. The Board of Directors may postpone or reschedule any
previously scheduled special meeting.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
Section 3. Notice of Meetings.
---------- ------------------
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than 10 nor more than 60 days before the
date on which the meeting is to be held, to each stockholder entitled to vote at
such meeting, except as otherwise provided herein or required by law (meaning,
here and hereinafter, as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than 30 days after
the date for which the meeting was originally noticed, or if a new record date
is fixed for the adjourned meeting, written notice of the place, date, and time
of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum.
---------- ------
At any meeting of the stockholders, the holders of one-third (1/3) of all
of the shares of the stock entitled to vote at the meeting, present in person or
by proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law or the rules
of the principal stock exchange upon which the Corporation's securities are
listed. Where a separate vote by a class or classes is required, one-third
(1/3) of the outstanding shares of such class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter unless or except to the extent that the
presence of a larger number may be required by law or the rules of the principal
stock exchange upon which the Corporation's securities are listed.
-3-
If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, date, or time.
Section 5. Organization.
---------- ------------
Such person as the Board of Directors may have designated or, in the
absence of such a person, the Chairman of the Board or, in his or her absence,
the Chief Executive Officer of the Corporation or, in his or her absence, the
President of the Corporation or, in his or her absence, such person as may be
designated by the Chairman of the Board or the President or, in the absence of
such a person, such person as may be chosen by the holders of one-third (1/3) of
the shares entitled to vote who are present, in person or by proxy, shall call
to order any meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary of the Corporation, the secretary of the meeting
shall be such person as the chairman appoints.
Section 6. Conduct of Business.
---------- -------------------
The chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The chairman shall have the power to adjourn the meeting to another place, date
and time. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at the meeting shall be announced
at the meeting.
Section 7. Proxies and Voting.
---------- ------------------
At any meeting of the stockholders, every stockholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or by his or her proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots, each of
which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
-4-
The Corporation may, and to the extent required by law, shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting may, and to the extent required by law, shall,
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. Every vote taken by ballots shall
be counted by a duly appointed inspector or inspectors.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast affirmatively or negatively.
Section 8. Stock List.
---------- ----------
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be open to the examination of any such stockholder, for any
purpose germane to the meeting, during ordinary business hours for a period of
at least 10 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 stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 9. Consent of Stockholders in Lieu of Meeting.
---------- ------------------------------------------
Unless otherwise provided in the Certificate of Incorporation, any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery
-5-
made to the Corporation's registered office shall be made by hand or certified
or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the date of the
earliest dated consent delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take action are delivered
to the Corporation in the manner prescribed in the preceding paragraph.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II - BOARD OF DIRECTORS
---------- ------------------
Section 1. Number, Election and Term of Directors.
---------- --------------------------------------
(1) The Board of Directors shall consist of one (1) or more members.
Except as required by law, and subject to the rights of the holders of any
series of preferred stock to elect directors under specified circumstances, the
number of directors shall be fixed and may be changed from time to time
exclusively by the Board of Directors pursuant to a resolution duly adopted by
the Board of Directors. Except as provided in Section 2 of this Article,
directors shall be elected by the holders of record of a plurality of the votes
cast at annual meetings of stockholders, and each director so elected shall hold
office until the next annual meeting and until his or her successor is duly
elected and qualified, or until his or her earlier resignation or removal. Any
director may resign at any time upon written notice to the Corporation.
Directors need not be stockholders.
(2) Upon the effectiveness of the merger (the "Merger") of HP Acquisition,
Inc., a Delaware corporation, with and into Boomtown, Inc., a Delaware
corporation ("Boomtown"), the total number of persons serving on the Board of
Directors of the Corporation shall be 11, seven (7) of whom shall be Parent
Directors and four (4) of whom shall be Boomtown Directors (as such terms are
defined below). The persons to serve on the Board of Directors of the
Corporation who are "Parent Directors" shall be selected solely by and at the
absolute discretion of the Board of Directors of the Corporation from among
persons who are members of the Board of Directors of the Corporation prior to
the effective date of the Merger. The persons to serve on the Board of
Directors of the Corporation who are "Boomtown Directors" shall be selected
solely by and at the absolute discretion of the Board of Directors of Boomtown
from among persons who were members of the Board of Directors of Boomtown prior
to the effective date of the Merger. For a period of three (3) years from the
effective date of the Merger, the number of members of the Corporation's Board
of Directors shall not be greater than 11 members [(plus up to two (2)
-6-
representatives of the holders of the Preferred Stock to the extent they
exercise their right to elect up to two (2) additional directors to the
Corporation's Board of Directors ("Preferred Directors")] unless otherwise
approved by a majority of the Boomtown Directors then on the Corporation's Board
of Directors (provided that such approval of Boomtown Directors shall not be
--------
required in the case of an increase, which is divisible by three (3), in the
number of persons serving on the Corporation's Board of Directors where one
Boomtown Director (selected by a majority of the Boomtown Directors then on the
Corporation's Board of Directors) is added for every two (2) Parent Directors
added). [Any Preferred Director shall not be considered to be either a Boomtown
Director or a Parent Director.] The Corporation shall cause the Board of
Directors of the Corporation and any nominating committee thereof to take such
steps as are necessary to nominate the initial Boomtown Directors (or their
replacement, which replacement shall be selected by a majority of the Boomtown
Directors then on the Corporation's Board of Directors) for re-election at the
first three (3) annual stockholders meetings following the effective date of the
Merger.
This Section 1(2) may not be amended for a period of three (3) years from
the effective date of the Merger without the approval of a majority of Boomtown
Directors then on the Corporation's Board of Directors.
Section 2. Newly Created Directorships and Vacancies.
---------- -----------------------------------------
Except as required by law, and subject to the rights of the holders of any
series of preferred stock with respect to such series of preferred stock, and
unless the Board of Directors otherwise determines, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders and until such director's successor shall
have been duly elected and qualified. No decrease in the number of authorized
directors constituting the entire Board of Directors shall shorten the term of
any incumbent director.
Section 3. Regular Meetings.
---------- ----------------
A regular meeting of the Board of Directors shall be held without other
notice than this bylaw, immediately following and at the same place as the
annual meeting of stockholders, unless otherwise provided by the Board of
Directors. Additional regular meetings of the Board of Directors shall be held
at such place or places, on such date or dates, and at such time or times as
shall have been established by the Board of Directors and publicized among all
directors. A notice of each regular meeting shall not be required.
-7-
Section 4. Special Meetings.
---------- ----------------
Special meetings of the Board of Directors may be called by the Chairman of
the Board, or by the President or by a majority of directors then in office and
shall be held at such place, on such date, and at such time as they or he or she
shall fix. Notice of the place, date, and time of each such special meeting
shall be given each director by whom it is not waived by mailing written notice
not less than four (4) days before the meeting or by hand delivery to the
recipient thereof or by recognized overnight delivery service or by telephone or
by telegraphing or telexing or by facsimile transmission of the same not less
than 24 hours before the meeting. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
Section 5. Quorum.
---------- ------
At any meeting of the Board of Directors, a quorum for all purposes shall
consist of the greater of (i) a majority of directors then in office or (ii)
one-third (l/3) of the total number of directors including vacancies. If a
quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof.
Section 6. Participation in Meetings By Conference Telephone.
---------- -------------------------------------------------
Members of the Board of Directors, or of any committee thereof, may
participate in a 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 such participation shall
constitute presence in person at such meeting.
Section 7. Conduct of Business.
---------- -------------------
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law. Action may be taken by
the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 8. Powers.
---------- ------
The Board of Directors may, except as otherwise required by law, exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, including, without limiting the generality of the foregoing,
the unqualified power:
-8-
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or non-
negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon
any other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock option, stock purchase,
bonus or other compensation plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the Corporation's business and affairs.
Section 9. Compensation of Directors.
---------- -------------------------
Unless otherwise restricted by the Certificate of Incorporation, the Board
of Directors shall have the authority to fix the compensation of the directors.
The directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or paid a stated salary or paid other
compensation as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 10. Director Emeritus.
----------- -----------------
The Board of Directors, may designate any person who has served as a
director of this Corporation as Director Emeritus, upon resignation or other
retirement or termination of any such director's tenure of office. Any Director
Emeritus shall be extended thereafter all of the incidental courtesies of
Hollywood Turf Club usually extended to active directors, and so long as such
person shall
-9-
desire the same, each such person shall be known as a Director Emeritus. Such
courtesies shall include the use of a director's badge, together with the use of
the Director's Lounge and similar incidental privileges. The Director Emeritus
shall not, however, be entitled to attend any meetings of the Board of Directors
or of any committee thereof without special invitation nor shall such Director
Emeritus have any vote or voice in management other than merely as a
stockholder, if he be such a stockholder. The privileges and position of a
Director Emeritus hereunder shall be personal, non-transferable and shall cease
entirely upon his death and may be revoked by the Board of Directors with or
without cause at any time.
ARTICLE III - COMMITTEES
----------- ----------
Section 1. Committees of the Board of Directors.
---------- ------------------------------------
The Board of Directors may designate one (1) or more committees, each
committee to consist of one (1) or more of the directors of the Corporation
appointed by the Board of Directors or the Chairman of the Board. The Board of
Directors or the Chairman of the Board may appoint one (1) 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 a committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in these Bylaws, 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 the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by
Delaware General Corporation Law to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation.
Section 2. Conduct of Business.
---------- -------------------
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third (1/3) of the members shall
constitute a quorum unless the committee shall consist of one (1) or two (2)
members, in which event one (1) member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee.
-10-
Section 3. Standing Executive Committee.
---------- ----------------------------
The Board of Directors shall appoint at least three (3) members of the
Board to comprise an Executive Committee. The Executive Committee shall have
and exercise all the powers and authority of the full Board of Directors in the
management of the business and affairs of the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, and these Bylaws.
For a period of three (3) years after the effective date of the Merger, the
Executive Committee of the Corporation's Board of Directors will consist of six
(6) members, comprised of four (4) Parent Directors (the "Parent Committee
Members") and two (2) Boomtown Directors (the "Boomtown Committee Members");
provided that if one of the initial Parent Committee Members ceases to be a
member of the Executive Committee for any reason or for no reason, the Executive
Committee will consist of five (5) members, comprised of three (3) Parent
Committee Members and two (2) Boomtown Committee Members. The number of members
of the Executive Committee shall not be greater than six (6) members (or five
(5) members if one of the initial Parent Committee Members ceases to be a member
of the Executive Committee) at any time during such three (3) year period
without the consent of the majority of the Boomtown Committee Members. The
initial Boomtown Committee Members will be Timothy J. Parrott and Richard J.
Goeglein. If either Messrs. Parrott or Goeglein shall be unavailable to serve,
any replacement Boomtown Committee Members shall be selected by a majority of
the Boomtown Directors then on the Corporation's Board of Directors. The
initial Parent Committee Members shall be R.D. Hubbard and three (3) other
Parent Directors selected by a majority of the Parent Directors then on the
Corporation's Board of Directors. Subject to the proviso set forth in the first
sentence of this paragraph, if either Mr. Hubbard or one or more of such other
initial Parent Committee Members shall be unavailable to serve, any replacement
Parent Committee Member shall be selected by a majority of the Parent Directors
then on the Corporation's Board of Directors. Notice of meetings of the
Executive Committee shall state the place, date and hour of the meeting and
shall be given to each member of the Executive Committee personally, by mail,
courier, telephone, telecopy or telegram on not less than 24 hours' notice.
Members of the Executive Committee may participate in such meetings by means of
conference telephone. Meetings of the Executive Committee may be held without
notice if all the members thereof are present or if all those not present waive
such notice in writing whether before or after the meeting.
This Section 3 may not be amended for a period of three (3) years from the
effective date of the Merger without the approval of a majority of Boomtown
Directors then on the Corporation's Board of Directors.
-11-
Section 4. Audit Committee.
---------- ---------------
The Corporation's Board of Directors shall have an Audit Committee
comprised of at least three (3) members, all of whom shall consist solely of
non-officer directors who shall meet the standards for membership as set forth
in Rule 303.00 of the New York Stock Exchange ("NYSE") Company Guide or any
successor rule adopted by the NYSE with respect to such membership.
In addition to such other responsibilities as may be delegated to the Audit
Committee from time to time, the Audit Committee shall: (i) review and approve
all related party transactions between the Corporation or any of its
subsidiaries and any officer or director (or their affiliates) having a total
value of more than $60,000 (or such higher amount as may be specified from time
to time by applicable rules and regulations of the Securities and Exchange
Commission ("SEC") as the threshold at which disclosure of such transactions is
required in the Corporation's annual report, proxy statement or other periodic
filing), other than compensation arrangements, incentive plans, stock options
plans or similar plans or arrangements, and transactions that are subject to
approval by another committee of the Board of Directors consisting of a majority
of directors who are disinterested in the subject transaction; (ii) require the
Corporation's internal audit department to review, at least annually, all such
related party transactions and report thereon to the Audit Committee; (iii)
report annually on all related party transactions as required by the SEC's proxy
rules and shall, at least quarterly, report on any related party transaction
involving $2 Million or more, either in the Corporation's quarterly report on
Form 10-Q or in its quarterly shareholders report; (iv) recommend an independent
firm of certified public accountants to conduct the audit of the Corporation's
annual financial statements, and confer with the selected firm as to the scope
and procedures of its audit; (v) require the Corporation's independent auditors,
as a part of their engagement, to render to the Corporation a "Report to
Management" as to the Corporation's system of internal financial and accounting
controls. The Audit Committee shall review that report and any response thereto
by management. At the conclusion of the annual audit, the Audit Committee shall
receive a copy of the report of the independent auditors, and review that report
as well as any concerns, comments or suggestions that the auditors may provide;
(vi) on at least an annual basis, review the Corporation's internal financial
and accounting controls with the Corporation's financial and accounting
officers, and report thereon to the Corporation's Board of Directors with any
recommendations for improvement or correction as the Audit Committee may
determine appropriate. Thereafter, the Audit Committee shall supervise the
implementation of any recommendations of the Board with respect thereto; and
(vii) review, at least annually, the adequacy and competency of the
Corporation's accounting and financial staff and internal audit department.
The Audit Committee may retain independent experts, including legal counsel
and investment counsel, at its discretion and at the Corporation's expense.
-12-
Section 5. Compensation Committee.
---------- ----------------------
The Corporation's Board of Directors shall have a Compensation Committee
comprised of at least one (1) member. In addition to such other
responsibilities and authority as may be delegated to the Compensation Committee
from time to time, the Compensation Committee shall have the authority to (i)
assist with the administration of the Corporation's compensation plans including
recommendations to the Board of Directors with respect to the establishment of
such plans and the terms and provisions thereof, (ii) make recommendations to
the Board of Directors with respect to the annual salaries and other
compensation of the officers of the Corporation, and (iii) provide assistance
and recommendations to the Board of Directors with respect to the compensation
policies and practices of the Corporation.
ARTICLE IV - OFFICERS
---------- --------
Section 1. Generally.
---------- ---------
The officers of the Corporation shall be elected by the Board of Directors
and shall consist of a Chairman of the Board, one or more Vice Chairmen of the
Board, a President, one or more Vice Presidents, a Secretary, and a Treasurer.
The Board of Directors may also appoint an Executive Vice President, a
Controller, one or more Assistant Secretaries and Assistant Treasurers, a Chief
Operating Officer, a General Manager of the Corporation's racing operations and
such other officers as it shall deem necessary from time to time. The principal
officers of the Corporation shall be chosen annually by the Board and shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any number of offices may be held by the same
person unless the Certificate of Incorporation or these Bylaws otherwise
provide.
Section 2. Chairman of the Board.
---------- ---------------------
The Chairman of the Board shall be the Chief Executive Officer of the
Corporation and shall, if present, preside at all meetings of the stockholders
and of the Board of Directors. If the Chairman of the Board is unable or
declines to act as Chief Executive Officer, then the Vice Chairman of the Board
shall be Chief Executive Officer. If there is more than one Vice Chairman of
the Board appointed, then the Vice Chairman with the longest continuous service
on the Board shall assume the duties of Chief Executive Officer in the absence
of the Chairman of the Board. If both the Chairman of the Board and any Vice
Chairman of the Board are unable or decline to act as Chief Executive Officer,
then the President shall become the Chief Executive Officer of the Corporation.
The Chief Executive Officer shall be the principal executive officer of the
Corporation and shall in general supervise and control all of the business and
affairs of the Corporation. He shall preside at all meetings of the
stockholders and of the Board of Directors and shall see that orders and
resolutions of the Board of Directors are carried into effect. He may sign
bonds,
-13-
mortgages, certificates for shares and all other contracts and documents
whether or not under the seal of the Corporation except in cases where the
signing and execution thereof shall be expressly delegated by law, by the Board
of Directors or by these Bylaws to some other officer or agent of the
Corporation. He shall have general powers of supervision and shall be the final
arbiter of all differences between officers of the Corporation and his decision
as to any matter affecting the Corporation shall be final and binding between
the officers of the Corporation subject only to actions of the Board of
Directors. He may also delegate such of his duties to the Vice Chairman of the
Board or the President or such other officers as the Chairman of the Board from
time to time deems appropriate.
Section 3. Vice Chairman of the Board.
---------- ---------------------------
The Board of Directors may appoint one or more Vice Chairman of the Board
any of whom shall, in the absence of the Chairman of the Board or in the event
of his inability or refusal to act, perform the duties of the Chairman of the
Board and Chief Executive Officer and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Chairman of the Board and
Chief Executive Officer. If more than one Vice Chairman is appointed the Vice
Chairman shall assume the duties of the Chairman of the Board in order of their
continuous service on this Board with the person having the longest continuous
service being the first to act. The Vice Chairman shall perform such other
duties as the Chief Executive Officer or the Board of Directors shall prescribe.
Section 4. President.
---------- ---------
In the absence of any Chief Executive Officer as the succession to that
position is prescribed in these Bylaws or in the event of the inability or
refusal of any such Chief Executive Officer to act, the President shall perform
the duties of the Chief Executive Officer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Chief Executive
Officer. He shall, at all times, have concurrent power with the Chief Executive
Officer to sign bonds, mortgages, certificates for shares and other contracts
and documents whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board of Directors, or by these Bylaws to some other officer or agent of the
Corporation. The President shall also perform such other duties as the Chief
Executive Officer or the Board of Directors may from time to time prescribe.
Section 5. Chief Operating Officer.
---------- -----------------------
The Chief Operating Officer shall be an employee of this Corporation and
shall serve at the pleasure of the Board of Directors. The Chief Operating
Officer may, but need not be, a member of the Board of Directors, but in either
event, shall be reportable to and act under the direction of the Chairman of the
Board and Board
-14-
of Directors. The Chief Operating Officer shall supervise the daily operations
and affairs of the Corporation under the direction of the Chairman of the Board
or such other persons as the Chairman of the Board may appoint from time to time
for that purpose and shall, within the limits specified in this Section, control
all of this corporation's racing activities, supervise its employees and
personnel, administer this Corporation's operating policies, and make such daily
operating decisions as are reasonably necessary for effective management. The
Chief Operating Officer shall have no authority to sign bonds, mortgages,
certificates for shares or other documents or to obligate this Corporation for
any sum in excess of $25,000.00 except as shall be expressly delegated by the
Board of Directors or by these Bylaws. The Chief Operating Officer shall make
such reports to the Board of Directors and to the Chairman of the Board as may
be directed by those entities and shall make a detailed report to the Chairman
of the Board and to the Board of Directors on the results of racing operations
and on the financial affairs of this Corporation no less frequently than
monthly.
Section 6. Vice Presidents.
---------- ---------------
In the absence of the President or in the event of his inability or refusal
to act, the Vice President, if one has been elected by the Board, (or in the
event there be more than one Vice President, the Executive Vice President or in
the event there is no Executive Vice President, the Vice President with the
longest continuous service on the Board of Directors of this Corporation) shall
perform the duties of the President, and when so acting, shall have all the
power of and be subject to all the restrictions upon the President. The Vice
Presidents shall perform such other duties as the Chief Executive Officer or the
Board of Directors may from time to time prescribe.
Section 7. Treasurer.
---------- ---------
The Treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys 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. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chairman of the Board and the
Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 8. Assistant Treasurer.
---------- -------------------
The Assistant Treasurer shall, in the absence of the Treasurer or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the Chairman of
the Board or the
-15-
Board of Directors may from time to time prescribe or perform such duties of the
Treasurer as the Treasurer of this Corporation may delegate from time to time.
Section 9. Secretary.
---------- ---------
The Secretary (or Assistant Secretary if appropriately delegated) shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book for that purpose and shall perform like
duties for the standing committee when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer. He shall have custody of
the corporate seal of the Corporation, and he, or an Assistant Secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or such Assistant Secretary. The
Chairman of the Board or the Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 10. Assistant Secretary.
----------- -------------------
The Assistant Secretary shall, in the absence of the Secretary or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as the Chairman of
the Board or the Board of Directors, or the Secretary may from time to time
prescribe.
Section 11. Controller.
----------- ----------
The Controller shall keep or cause to be kept correct records of the
business and transactions of the Corporation and shall, upon request, at all
reasonable times exhibit or cause to be exhibited such records to any of the
directors of the Corporation at the place where such records are maintained. He
shall perform such other duties as from time to time may be assigned to him by
the Chairman of the Board or the Board of Directors.
Section 12. Delegation of Authority.
----------- -----------------------
The Board of Directors may from time to time delegate the powers or duties
of any officer to any other officers or agents, notwithstanding any provision
hereof.
Section 13. Removal.
----------- -------
Any officer of the Corporation may be removed at any time, with or without
cause, by the Board of Directors.
-16-
Section 14. Resignations.
----------- ------------
Any officer of the Corporation may resign at any time by giving written
notice of his resignation to the Board or the Chairman of the Board or the
Secretary. Any such resignation shall take effect at the time specified
therein, or if the time when it shall become effective shall not be specified
therein, then it shall take effect immediately upon its receipt by the Board or
the Chairman of the Board or Secretary; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 15. Action with Respect to Securities of Other Corporations.
----------- -------------------------------------------------------
Unless otherwise directed by the Board of Directors, the Chairman of the
Board or the President or any officer of the Corporation authorized by the
Chairman of the Board or the President shall have power to vote and otherwise
act on behalf of the Corporation, in person or by proxy, at any meeting of
stockholders of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V - STOCK
--------- -----
Section 1. Certificates of Stock.
---------- ---------------------
Each stockholder shall be entitled to a certificate signed by, or in the
name of the Corporation by, the Chairman of the Board, President or a Vice
President, and by the Secretary or an Assistant Secretary, or the Treasurer or
an Assistant Treasurer, certifying the number of shares owned by him or her.
Any or all of the signatures on the certificate may be by facsimile.
Section 2. Transfers of Stock.
---------- ------------------
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of this Article V, an
outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date.
---------- -----------
(1) In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any
-17-
other lawful action, the Board of Directors may, except as otherwise required by
law, fix a record date, which record date shall not precede the date on which
the resolution fixing the record date is adopted and which record date shall not
be more than 60 nor less than 10 days before the date of any meeting of
stockholders, nor more than 60 days prior to the time for such other action as
hereinbefore described; provided, however, that if no record date is fixed by
the Board of Directors, 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, for determining stockholders entitled to receive
payment of any dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or for any other
purpose, the record date shall be at the close of business on the day on which
the Board of Directors adopts a resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
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.
(2) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within 10 days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in the manner prescribed by Article I, Section 9 of these Bylaws.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 4. Lost, Stolen or Destroyed Certificates.
---------- --------------------------------------
In the event of the loss, theft or destruction of any certificate of stock,
another may be issued in its place pursuant to such regulations as the Board of
Directors may
-18-
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations.
---------- -----------
The issue, transfer, conversion and registration of certificates of stock
shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI - NOTICES
---------- -------
Section 1. Notices.
---------- -------
Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee or
agent shall be in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in the mails,
postage paid, recognized overnight delivery service or by sending such notice by
facsimile, receipt acknowledged, or by prepaid telegram or mailgram. Any such
notice shall be addressed to such stockholder, director, officer, employee or
agent at his or her last known address as the same appears on the books of the
Corporation. The time when such notice is received, if hand delivered, or
transmitted or dispatched, if delivered through the mails or by facsimile,
telegram or mailgram, shall be the time of the giving of the notice.
Section 2. Waivers.
---------- -------
A written waiver of any notice, signed by a stockholder, director, officer,
employee or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be
given to such stockholder, director, officer, employee or agent. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
Attendance at any meeting shall constitute waiver of notice except attendance
for the sole purpose of objecting to the timeliness of notice.
ARTICLE VII - MISCELLANEOUS
----------- -------------
Section 1. Facsimile Signatures.
---------- --------------------
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
-19-
Section 2. Corporate Seal.
---------- --------------
The Board of Directors may provide a suitable seal, containing the name of
the Corporation, which seal shall be in the charge of the Secretary. If and
when so directed by the Board of Directors or a committee thereof, duplicates of
the seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
---------- ----------------------------------------
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director, committee member, or officer
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 4. Fiscal Year.
---------- -----------
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 5. Time Periods.
---------- ------------
In applying any provision of these Bylaws which requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
------------ -----------------------------------------
Section 1. Right to Indemnification.
---------- ------------------------
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is an alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation
-20-
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except as
provided in Section 3 of this Article VIII with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
Section 2. Right to Advancement of Expenses.
---------- --------------------------------
The right to indemnification conferred in Section 1 of this Article VIII
shall include the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 2 or otherwise. The rights to indemnification and
to the advancement of expenses conferred in Sections 1 and 2 of this Article
VIII shall be contract rights and such rights shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the indemnitee's heirs, executors and administrators.
Section 3. Right of Indemnitee to Bring Suit.
---------- ---------------------------------
If a claim under Section 1 or 2 of this Article VIII is not paid in full by
the Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit
-21-
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article VIII or otherwise shall be on the
Corporation.
Section 4. Non-Exclusivity of Rights.
---------- -------------------------
The rights to indemnification and to the advancement of expenses conferred
in this Article VIII shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation or Bylaws, any agreement, or by vote of the Corporation's
stockholders or disinterested directors or otherwise.
Section 5. Insurance.
---------- ---------
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of the Corporation.
---------- ----------------------------------------------------------
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
-22-
ARTICLE IX - AMENDMENTS
---------- ----------
In furtherance and not in limitation of the powers conferred by law, the
Board of Directors is expressly authorized to make, alter, amend and repeal
these Bylaws subject to the power of the holders of capital stock of the
Corporation to alter, amend or repeal the Bylaws; provided, however, that, with
respect to the powers of holders of capital stock to make, alter, amend and
repeal Bylaws of the Corporation, notwithstanding any other provision of these
Bylaws or any provision of law which might otherwise permit a lesser vote or no
vote, but in addition to any affirmative vote of the holders of any particular
class or series of the capital stock of the Corporation required by law, these
Bylaws or any preferred stock, the affirmative vote of the holders of at least
66 K% of the voting power of all of the then-outstanding shares entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to make, alter, amend or repeal any provision of these Bylaws.
-23-