AMENDED AND RESTATED
BY-LAWS
OF
CAPITAL GAMING INTERNATIONAL, INC.
ARTICLE I - OFFICES
The registered office of the Corporation shall be located in such city as
the Board of Directors (the "Board") shall designate. The principal office of
the Corporation is in the City of Phoenix, County of Maricopa, State of Arizona.
The Board has full power and authority to change the principal place of business
at any time to another location within or outside of the State of Arizona. The
Corporation may also have offices at such other places within or without the
State of Arizona as the Board may from time to time determine or the business of
the Corporation may require.
ARTICLE II - SHAREHOLDERS
1. PLACE OF MEETINGS.
Meetings of shareholders shall be held at the principal office of the
Corporation or at such place within or without the State of Arizona as the Board
shall authorize.
2. ANNUAL MEETING.
The annual meeting of the shareholders shall be held on the first Tuesday
of the fifth month following the close of the Corporation's fiscal year at 10:00
a.m. in each year if not a legal holiday; and if a legal holiday, then on the
next business day following at the same hour, or at such other date and time as
may be fixed by the Board, when the shareholders shall elect a Board of
Directors and transact such other business as may properly come before the
meeting.
3. SPECIAL MEETINGS.
Special meetings of the shareholders may be called by the Board, by the
Chairman, by the Chief Executive Officer or by the President and shall be called
by the Chairman or the Secretary within twenty (20) days of receiving a written
request of either a majority of the votes of the Board or the shareholders
owning at least 10% of the shares issued and outstanding. Such request shall
state the purpose of purposes of the proposed meeting. Business transacted at a
special meeting shall be confined to the purposes stated in the notice.
4. FIXING RECORD DATE.
For the purpose of determining the shareholders entitled to notice of or
to vote at any meeting of shareholders or any adjournment thereof, or to express
consent to or dissent from any proposal without a meeting, or for the purpose of
determining shareholders entitled to receive payment of any dividend or the
allotment of any rights, or for the purpose of any other action, the Board shall
fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall not be more than sixty (60) days nor less then ten
(10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action. If no record date is fixed, it shall be determined in accordance with
the provisions of law.
5. NOTICE OF MEETINGS OF SHAREHOLDERS.
Written notice of each meeting of shareholders shall state the purpose or
purposes for which the meeting is called, the place, date, and hour of the
meeting and, unless it is the annual meeting, shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting.
Notice shall be given either personally or by mail to each shareholder entitled
to vote at such meeting, not less than ten (10) nor more than sixty (60) days
before the date of the meeting. If action is proposed to be taken that might
entitle the shareholders to payment for their shares, the notice shall include a
statement of that purpose and to that effect. If mailed, the notice is given
when deposited in the United States mail, with postage thereon prepaid, directed
to the shareholder at his address as it appears on the record of shareholders,
or, if he shall have filed with the Secretary a written request that notices to
him be mailed to some other address, then directed to him at such other address.
6. WAIVERS.
Notice of meeting need not be given to any shareholder who signs a waiver
of notice, in person or by proxy, whether before or after the meeting. The
attendance of any shareholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice by him.
7. QUORUM OF SHAREHOLDERS.
Unless the Amended and Restated Certificate of Incorporation provides
otherwise, the holders of a majority of the shares entitled to vote thereat
shall constitute a quorum at a meeting of shareholders for the transaction of
any business; provided, however, that when a specified item of business is
required to be voted on by a class or classes, the holders of a majority of the
shares of such class or classes shall constitute a quorum for the transaction of
such specified item of business. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any shareholder. The
shareholders present may adjourn the meeting despite the absence of a quorum.
8. PROXIES.
Every shareholder entitled to vote at a meeting of shareholders or to
express consent or dissent without a meeting may authorize another person or
persons to act for him by proxy. Every proxy must be signed by the shareholder
or his attorney-in-fact. No proxy shall be valid after expiration of eleven
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the shareholder executing it, except as
otherwise provided by law.
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9. QUALIFICATION OF VOTERS.
Every shareholder of record shall be entitled at every meeting of
shareholders to one vote for every share standing in his name on the record of
shareholders, unless otherwise provided in the Amended and Restated Certificate
of Incorporation.
10. VOTE OF SHAREHOLDERS.
(a) Except as otherwise required by statute or by the Amended and
Restated Certificate of Incorporation (i) the holders of the Corporation's
Common Stock, no par value (the "Common Stock"), and the holders of the
Corporation's Class A Common Stock, no par value (the "Class A Common Stock"),
voting together as a single class, shall be entitled to elect two (2) directors
of the Corporation (the "Common Directors") and (ii) the holders of the Class A
Common Stock, voting separately as a single class, shall be entitled to elect
not less than one (1) and not more than three (3) directors (the "Class A
Director(s)").
(b) Except as set forth above and as otherwise required by statute
or by the Amended and Restated Certificate of Incorporation, the holders of the
Common Stock and the holders of the Class A Common Stock shall vote together as
a single class on all actions to taken by the shareholders.
11. WRITTEN CONSENT OF SHAREHOLDERS.
Any required or permitted to be taken at a meeting of shareholders by
statute or the Amended and Restated Certificate of Incorporation, other than the
annual election or the directors, may be taken without a meeting if consented to
in writing by the minimum number of votes which would be necessary to authorize
such action at a meeting of the shareholders at which all shareholders entitled
to vote thereon were present and voting. The resolution and the written consent
thereto by the shareholders shall be filed with the minutes of the proceedings
of the shareholders.
ARTICLE III - DIRECTORS
1. BOARD OF DIRECTORS.
Subject to any provision in the Amended and Restated Certificate of
Incorporation the business of the Corporation shall be managed by its Board,
each of whom shall be at least eighteen (18) years of age and need not be
shareholders.
2. NUMBER OF DIRECTORS.
The number of directors shall be not less than four (4) and not more than
seven (7). The Board at all times shall consist of (a) three (3) directors
elected by the holders of the Common Stock and the Class A Common Stock, voting
together as a single class, and (b) not less than
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one (1) and not more than four (4) directors elected by the holders of the Class
A Common Stock, voting separately as a single class.
3. ELECTION AND TERM OF DIRECTORS.
At each annual meeting of shareholders and in accordance with the
provisions of the Amended and Restated Certificate of Incorporation, the
shareholders shall elect directors to hold office until the next annual meeting.
Each director shall hold office until the expiration of the term for which he is
elected and until his successor has been elected and qualified, or until his
prior death, resignation or removal.
4. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason (a) may be filled
by a vote of the holders of Common Stock and Class A Common Stock, as provided
in the Amended and Restated Certificate of Incorporation, in the event the
vacancy or new directorship relates to a Common Director and (b) may be filled
by a vote of the holders of Class A Common Stock, as provided in the Amended and
Restated Certificate of Incorporation, in the event the vacancy or new
directorship relates to a Class A Directors. A director elected to fill a
vacancy caused by resignation, death or removal shall be elected to hold office
for the unexpired term of his predecessor.
5. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the
shareholders or by action of the Board. Directors may be removed without cause
only by vote of the shareholders.
6. RESIGNATION.
A director may resign at any time by giving written notice to the Board,
the Chairman, the Chief Executive Officer, the President or the Secretary of the
Corporation. Unless otherwise specified by the notice, the resignation shall
take effect upon receipt thereof by the Board or such officer, and the
acceptance of the resignation shall not be necessary to make it effective.
7. ACTION OF THE BOARD.
(a) At all meetings of the Board and in case of any actions of the
Board, a majority of the votes of the directors elected at the time of the vote
shall be an act of the Board; provideD, however, that for purposes of such
meetings and actions of the Board, (i) each Common Director shall have one (1)
vote and (ii) for the Class A Director(s), (w) in the event the holders of the
Class A Common Stock have elected one (1) Class A Director at the time of the
vote, such Class A Director shall have four (4) votes; (x) in the event the
holders of the Class A Common Stock have elected two (2) Class A Directors at
the time of the vote, each Class A Director shall have two (2) votes; (y) in the
event the holders of the Class A Common
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Stock have elected three (3) Class A Directors at the time of the vote, the
Class A Director first elected (or first nominated in the event that the three
(3) Class A Directors were elected simultaneously) shall have two (2) votes and
the other Class A Directors shall have one (1) vote each; and (z) in the event
the holders of the Class A Common Stock have elected four (4) Class A Directors
at the time of the vote, each such Class A Director shall have one (1) vote.
(b) Whenever any action is required or permitted to be taken by the
Board, such action may be taken without a meeting if consented to in writing by
the minimum number of votes which would be necessary to authorize such action at
a meeting of the Board at which all directors then elected were present and
voting. The resolution and the written consent thereto by the members of the
Board shall be filed with the minutes of the proceedings of the Board.
8. QUORUM OF DIRECTORS.
The participation of directors with a majority of the votes of the entire
Board shall constitute a quorum for the transaction of business or any specified
item of business.
9. PLACE AND TIME OF BOARD MEETINGS; NOTICE; ADJOURNMENT.
(a) The Board may hold its meetings at the office of the corporation
or at such other places, either within or without the State of Arizona, as it
may, from time to time, determine.
(b) A regular annual meeting of the Board shall be held immediately
following the annual meeting of shareholders at the place of such annual meeting
of shareholders.
(c) Regular meetings of the Board may be held without notice at such
time and place as it from time to time shall determine.
(d) Special meetings of the Board shall be held upon notice to the
directors and may be called by the Chairman, Chief Executive Officer or
President upon one day's notice to each director either by telecopier or by U.S.
mail or by express mail; special meetings shall be called by the Chairman or by
the Corporate Secretary in a like manner on written request of two directors.
Notice of a meeting need not be given to any director who submits a waiver of
notice whether before or after the meeting or who attends the meeting without
protesting prior thereto or at its commencement, the lack of notice to him.
(e) A majority of the votes of the directors present, whether or not
a quorum is present, may adjourn any meeting to another time and place. Notice
of the adjournment shall be given all directors who were absent at the time of
the adjournment and, unless such time and place are announced at the meeting, to
the other directors.
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10. CHAIRMAN.
At all meetings of the Board the Chairman or, in his absence, the Chief
Executive Officer or, in his absence, the President or, in his absence, a
chairman chosen by the Board shall preside.
11. EXECUTIVE AND OTHER COMMITTEES.
The Board, by resolution adopted by a majority of the entire Board, may
designate from among its members an executive committee and other committees,
each consisting of at least one Class A Director and two or more Common
Directors. Each such committee shall serve at the pleasure of the Board.
12. COMPENSATION.
Directors shall be compensated for their services and reimbursed for their
expenses as employees, officers, directors and members of Board or of
committees. The Board shall periodically determine a reasonable basis for
compensation, and a majority of the votes of the Board must adopt any resolution
determining compensation. The Board may, if it deems it appropriate, provide for
reduced or no additional compensation for Board members who are compensated
employees of the Corporation. In addition, directors, by resolution of the
Board, may authorize a fixed sum and expenses for actual attendance at each
regular and special meeting of the Board. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV - OFFICERS
1. OFFICES, ELECTION, TERM.
(a) The Board may elect or appoint a Chairman of the Board, a Chief
Executive Officer, a President, a Chief Operating Officer, a Chief Financial
Officer, one or more Vice-Presidents, a Secretary, a Treasurer and such other
officers as it may determine, who shall have such duties, powers, and functions
as hereinafter provided.
(b) All officers shall be elected or appointed to hold office until
the meeting of the Board following the annual meeting of shareholders.
(c) Each officer shall hold office for the term for which he is
elected or appointed and until his successor has been elected or appointed and
qualified.
2. REMOVAL, RESIGNATION, SALARY.
(a) Any officer elected or appointed by the Board may be removed by
the Board with or without cause.
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(b) In the event of the death, resignation or removal of an officer,
the Board in its discretion may elect or appoint a successor to fill the
unexpired term.
(c) The salaries of all officers shall be fixed by the Board.
(d) The directors may require any officer to give security for the
faithful performance of his duties.
3. CHAIRMAN OF THE BOARD.
The Chairman of the Board shall preside at all meetings of the
shareholders and of the Board and shall see that all orders and resolutions of
the Board are carried into effect.
4. CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall be the senior executive officer of the
Corporation and shall, in addition to reporting to the Chairman of the Board,
perform such duties as the Chairman of the Board shall prescribe.
5. PRESIDENT.
The President shall be the Chief Operating Officer of the Corporation and
shall have the management of the operations of the Corporation.
6. VICE-PRESIDENTS.
During the absence or disability of the President, the Vice President or,
if there are more than one, the Executive Vice President, shall have all the
powers and functions of the President. Each Vice President shall perform such
other duties as the Board shall prescribed.
7. SECRETARY.
The Secretary shall:
(a) attend all meetings of the Board and of the shareholders;
(b) record all votes and minutes of all proceedings in a book to be
kept for that purpose;
(c) give or cause to be given notice of all meetings of shareholders
and of special meetings of the Board;
(d) keep in safe custody the seal of the Corporation and affix it to
any instrument when authorized by the Board;
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(e) when required, prepare or cause to be prepared and available at
each meeting of shareholders a certified list in alphabetical order of the names
of the shareholders entitled to vote thereat, indicating the number of shares of
each respective class held by each;
(f) keep all the documents and records of the Corporation as
required by law or otherwise in a proper and safe manner;
(g) perform such other duties as may be prescribed by the Board; and
perform such other duties as are given to him by these by-laws or as from time
to time are assigned to him by the Board or the Chairman.
8. ASSISTANT SECRETARIES.
During the absence or disability of the Secretary, the Assistant Secretary
or, if there are more than one, the one so designated by the Secretary or the
Board, shall have all the powers and functions of the Secretary.
9. TREASURER.
The Treasurer shall be the Chief Financial Officer and shall:
(a) have the custody of the corporate funds and securities;
(b) keep full and accurate accounts of receipts and disbursements in
the corporate books;
(c) deposit all money and other valuables in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board;
(d) disburse the funds of the Corporation as may be ordered or
authorized by the Board and preserve proper vouchers for such disbursements;
(e) render to the Chairman and Board at the regular meetings of the
Board, or whenever they require it, an account of all of his transactions as
Treasurer and of the financial condition of the Corporation;
(f) render a full financial report at the annual meeting of the
shareholders if so requested; and
(g) be furnished by all corporate officers and agents, at his
request, with such reports and statements as he may require as to all financial
transaction of the Corporation.
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10. ASSISTANT TREASURER.
During the absence or disability of the Treasurer, the Assistant Treasurer
or, if there are more than one, the one so designated by the Treasurer or by the
Board, shall have all the powers and functions of the Treasurer.
11. SURETIES AND BONDS.
In case the Board shall so require, any officer or agent of the
Corporation shall execute to the Corporation a bond in such sum and with such
surety or sureties as the Board may direct, conditioned upon the faithful
performance of his duties to the Corporation and including responsibility for
negligence and for the accounting for all property, funds, or securities of the
Corporation which may come into his hands.
ARTICLE V - CERTIFICATES FOR SHARES
1. CERTIFICATES.
The shares of the Corporation shall be represented by certificates. They
shall be numbered and entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name and the number of shares and shall
be signed by the President or a Vice President and the Treasurer or the
Corporate Secretary, and shall bear the corporate seal.
2. LOST OR DESTROYED CERTIFICATES.
The Board may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation,
alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates or his legal
representative, to advertise the same in such manner as it shall require and/or
give the Corporation a bond in such sum and with such surety or sureties as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
3. TRANSFERS OF SHARES.
(a) Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate; every such transfer shall be entered on
the transfer book of the Corporation which shall be kept at its principal
office.
(b) The Corporation shall be entitled to treat the holder of record
of any share as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or
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other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of the State of New Jersey.
4. CLOSING TRANSFER BOOKS.
The Board shall have the power to close the share transfer books of the
Corporation for a period of not more than ten days during the thirty day period
immediately preceding (i) any shareholders' meeting, or (ii) any date upon which
shareholders shall be called upon to or have a right to take action without a
meeting, or (iii) any date fixed for the payment of a dividend or any other form
of distribution, and only those shareholders of record at the time the transfer
books are closed shall be recognized as such for the purpose of (A) receiving
notice of or voting at such meeting, or (B) allowing them to take appropriate
action, or (C) entitling them to receive any dividend or other form of
distribution.
ARTICLE VI - DIVIDENDS
Subject to the provisions of the Amended and Restated Certificate of
Incorporation and to applicable law, dividends on the outstanding shares of the
Corporation may be declared in such amounts and at such time or times as the
Board may determine. Before payment of any dividend, there may be set aside out
of the net profits of the Corporation available for dividends such sum or sums
as the Board, from time to time, in its absolute discretion deems proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Board shall think conducive to the interests of the Corporation,
and the Board may modify or abolish any such reserve.
ARTICLE VII - CORPORATE SEAL
The seal of the Corporation shall be circular in form and bear the name of
the Corporation, the year of its organization, and the words "Corporate Seal,
New Jersey." The seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon adhesive substance affixed thereto.
The seal on the certificate for shares or upon any corporate obligation for the
payment of money may be a facsimile, engraved or printed.
ARTICLE VIII - EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or countersigned,
executed, verified, or acknowledged by such officer or officers or other person
or persons as the Board may from time to time designate.
ARTICLE IX - FISCAL YEAR
The fiscal year shall begin on the first day of July in each year or at
such other time as may be designated by the Board.
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ARTICLE X - REFERENCES TO AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Reference to the Amended and Restated Certificate of Incorporation in
these by-laws shall include all amendments thereto or changes thereof unless
specifically excepted.
ARTICLE XI - BY-LAW CHANGES
AMENDMENT, REPEAL, ADOPTION, ELECTION OF DIRECTORS
(a) Except as otherwise provided in the Amended and Restated
Certificate of Incorporation, the by-laws may be amended, repealed or adopted by
vote of the holders of a majority of shares of Common Stock and Class A Common
Stock, voting together as a single class. By-laws may also be amended, repealed
or adopted by the Board; but any by-law adopted by the Board may be amended by
the shareholders entitled to vote thereon as hereinabove provided.
(b) If any by-law regulating an impending election of directors is
adopted, amended, or repealed by the Board, there shall be set forth in the
notice of the next meeting of shareholders for the election of directors the
by-law so adopted, amended, or repealed, together with a concise statement of
the changes made.
ARTICLE XII - INDEMNIFICATION
The directors, officers, employees and agents of the Corporation shall be
indemnified to the fullest extent permitted by the General Corporation Law of
the State of New Jersey.
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