EXHIBIT 2
BYLAWS OF
MTR GAMING GROUP, INC.
MARCH 7,1988; AMENDED AS OF JANUARY 27, 1998
BYLAWS
OF
MTR GAMING GROUP, INC.
ARTICLE I
Offices
Section 1. Business Offices. The principal office of the corporation
shall be located in Chester, West Virginia or in such other location as the
board of directors may from time to time determine. The corporation may have
such other offices, either within or outside Delaware, as the board of
directors may designate or as the business of the corporation may require
from time to time.
Section 2. Registered Office and Agent. The registered office of the
corporation required by the General Corporation Law of Delaware to be
maintained in Delaware shall be located at 1209 Orange Street, Wilmington,
Delaware 19801. The name of the registered agent at that address is The
Corporation Trust Company. The registered office and the registered agent
may be changed from time to time by the board of directors.
ARTICLE II
Shareholders
Section 1. Annual Meeting. An annual meeting of the shareholders shall
be held on the 1st Tuesday in the month of April in each year, at 10:00 a.m.
or at such other time on such other day as may be determined by the board of
directors, beginning with the year 1989, for the purpose of electing
directors and for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall be a legal holiday
in the State of Delaware, such meeting shall be held on the next succeeding
business day. If the election of directors shall not be held on the day
designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the board of directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as may be
convenient. Failure to hold an annual meeting as required by these bylaws
shall not work a forfeiture or dissolution of the corporation.
Section 2. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be
called by the president or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-tenth of all
the outstanding shares of the corporation entitled to vote at the meeting.
Section 3. Place of Meetings. Each meeting of the shareholders shall be
held at such place, either within or outside the State of Delaware, as may be
specified in the notice of the meeting, or, if no place is specified in the
notice, at the principal office of the corporation in New Castle County,
Delaware. The person or group calling the meeting shall be entitled, but not
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required, to designate in the call the place of the meeting to be specified
in the notice of the meeting.
Section 4. Notice of Meeting. Written notice of each meeting of the
shareholders stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is
called, shall, unless otherwise prescribed by statute, be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by first class, certified or registered mail, by or at
the direction of the president, the secretary or the officer or other person
authorized to give notice of the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, the notice shall be deemed to
be delivered as to any shareholder of record when deposited in the United
States Mail, addressed to the shareholder at his address as it appears on the
stock transfer books of the corporation, with postage prepaid. If (a) notice
of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting during the period
between such two consecutive annual meetings or (b) all, and at least two,
payments of dividends or interest during a twelve month period have been
mailed to the last known address of any shareholder of record and are
returned as undeliverable, no further notices to such shareholder shall be
necessary until another address for such shareholder is made known to the
corporation.
Section 5. Waiver of Notice. When any notice is required to be given to
any shareholder under the provisions of the General Corporation Law of
Delaware or under the provisions of the certificate of incorporation or these
bylaws, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a shareholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 6. Fixing of Record Date. In order that the corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or adjournment thereof, or to consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of any meeting; not more than ten (10) days
after the resolution fixing the record date for any written consent; and not
more than sixty (60) days prior to any other action. If no record date is
fixed, the record date shall be: (a) for determining shareholders entitled
to notice of or to vote at a meeting of shareholders 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; (b) for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, the day on which the first
written consent is delivered to the corporation; and (c) for determining
shareholders for any other purpose the close of business on the day on which
the board of directors adopts the resolution relating thereto.
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Section 7. Voting Record. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten
days before each meeting of the shareholders, a complete record of the
shareholders entitled to vote at the meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each. The record shall be subject to the inspection of any
shareholder for any purpose germane to the meeting during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The record shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may
be inspected by any shareholder who is present. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled
to examine the record or transfer books or to vote at any meeting of the
shareholders.
Section 8. Proxies. At all meetings of the shareholders, a shareholder
entitled to vote may vote in person, or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact. Any proxy shall be
filed with the secretary of the corporation before or at the time of the
meeting. Unless otherwise provided in the proxy and not prohibited by
applicable law, a proxy may be revoked at any time before it is voted, either
by written notice filed with the secretary or the acting secretary of the
meeting or by oral notice given by the shareholder to the presiding officer
during the meeting. The presence of a shareholder who has filed his proxy
shall not of itself constitute a revocation of the proxy. No proxy shall be
valid after three years from the date of its execution, unless otherwise
provided in the proxy. The board of directors shall have the power and
authority to prescribe rules and regulations establishing presumptions as to
the validity and sufficiency of proxies.
Section 9. Quorum; Action of Shareholders. At all meetings of the
shareholders, a majority of the shares entitled to vote, represented in
person or by proxy (and in no event less than 33 1/3 percent of the
outstanding shares of the corporation's common voting stock), shall
constitute a quorum, and at any meeting at which a quorum is present the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders,
unless the vote of a greater proportion or number is required by the General
Corporation Law of Delaware or the certificate of incorporation. If a quorum
is not present or represented at any meeting of the shareholders, a majority
of the outstanding shares represented at the meeting may adjourn the meeting
from time to time for a period not to exceed sixty days at any one
adjournment. Except as hereafter provided, when a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. However, if the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting. At any such adjourned
meeting at which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the original meeting. The
shareholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum present.
Section 10. Voting of Shares. Each outstanding share of record,
regardless of class, is entitled to one vote, and each fractional share is
entitled to a corresponding fractional vote, on
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each matter submitted to a vote of the shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by or pursuant to the certificate of incorporation as permitted by the
General Corporation Law of Delaware. In the election of directors each
record holder of stock entitled to vote at such election shall have the right
to vote the number of shares owned by him for as many persons as there are
directors to be elected and for whose election he has the right to vote.
Cumulative voting shall not be allowed in the election of directors or for
any other purpose.
Section 11. Voting of Shares by Certain Holders. Neither treasury
shares nor shares held by another corporation if a majority of the shares
entitled to vote for the election of directors of such other corporation is
held by the corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares at any given time.
Shares standing in the name of another corporation, whether
domestic or foreign, may be voted by such officer, agent or proxy as the
bylaws of the other corporation may prescribe, or, in the absence of any such
provision, as the board of directors of the other corporation may determine.
Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. A shareholder whose shares are pledged shall be entitled
to vote such shares unless in the transfer by the pledgor on the books of the
corporation he has expressly empowered the pledgee to vote thereon.
Section 12. Shares Held by Two or More Persons. If shares or other
securities having voting power stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares,
voting with respect to the shares shall, except as hereafter provided, have
the following effect. (a) if only one person votes, his act binds all; (b) if
two or more persons vote, the act of the majority so voting binds all; (c) if
two or more persons vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question proportionally, or
any person voting the shares, or a beneficiary, if any, may apply to any
court of competent jurisdiction in the State of Delaware to appoint an
additional person to act with the persons so voting the shares. The shares
shall then be voted as determined by a majority of such persons and the
person appointed by the court. If a tenancy is held in unequal interests, a
majority or even split for purposes hereof shall be a majority or even split
in interest. The effects of voting stated in the foregoing provisions of this
Section shall not be applicable, however, if the secretary of the corporation
is given written notice of alternate voting provisions and is furnished with
a copy of the instrument or order wherein the alternate voting provisions are
stated.
Section 13. Action Without a Meeting. Any action required or
permitted by the General Corporation Law of Delaware to be taken at any
meeting of the shareholders may be taken without a meeting, without prior
notice, and without a vote if the action is evidenced by one or more written
consents, which may be signed in counterparts, describing the action taken,
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.
Any such action by written consent shall be effective upon
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the date specified in the consent so long as written consents signed by a
sufficient number of shareholders are delivered to the corporation in the
manner specified above within sixty days of the earliest dated consent.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those shareholders who have
not consented in writing. A written consent of the shareholders given in
accordance with this section has the same force and effect as a vote of such
shareholders and may be stated as such in any document. The record date for
determining shareholders entitled to take action without a meeting is set
forth in Section 6 of this Article II.
Section 14. Order of Business. The order of business at the annual
meeting, and so far as practicable at all other meetings of shareholders,
shall be as follows:
(a) Gall to order.
(b) Roll call -- determination of quorum.
(c) Proof of due notice of meeting or waiver thereof.
(d) Reading and approval of minutes of previous meeting.
(e) Reports from directors, officers and committees.
(f) Election of directors.
(g) Unfinished business.
(h) New business.
(i) Adjournment.
Section 15. Voting By Ballot. Voting on any question or in any
election may be by voice vote unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot, except that the election
of directors shall be by written ballot.
ARTICLE III
Board of Directors
Section 1. General. The business and affairs of the corporation shall be
managed by its board of directors, except as otherwise provided in the
General Corporation Law of Delaware or in the certificate of incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of
the corporation shall be seven. The number of directors may be increased or
decreased at any time by amendment of this bylaw, but no decrease shall have
the effect of shortening the term of any incumbent director. Directors
shall be elected at each annual meeting of the shareholders. Each director
shall hold office until the next annual meeting of the shareholders and
thereafter until his successor shall have been elected and qualified, or
until his earlier death, resignation or removal. Directors shall be natural
persons, eighteen years of age or older, but need not be residents of the
State of Delaware or shareholders of the corporation. Directors shall be
removable in the manner provided by the General Corporation Law of Delaware.
Section 3. Vacancies. Any director may resign at any time by giving
written notice to the president or to the secretary of the corporation. A
director's resignation shall take effect at the time specified in such
notice, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any vacancy
occurring in the board of
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directors may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by the affirmative vote of a majority of the
directors then in office or by an election at an annual meeting or at a
special meeting of the shareholders called for that purpose, and a director
so chosen shall hold office until the next annual meeting of the shareholders
and thereafter until his successor shall have been elected and qualified, or
until his earlier death resignation or removal.
Section 4. Regular Meetings. A regular meeting of the board of directors
shall be held without other notice than this bylaw immediately after and at
the same place as the annual meeting of the shareholders, for the purpose of
electing officers and for the transaction of such other business as may come
before the meeting. The board of directors may provide by resolution the
time and place, either within or outside Delaware, for the holding of
additional regular meetings without other notice than such resolution.
Section 5. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the president or any one director. The
person or persons authorized to call special meetings of the board of
directors may fix any place as the place, either within or outside Delaware,
for holding any special meeting of the board called by them.
Section 6. Notice. Notice of any special meeting of the board of
directors, stating the place, day and hour of the meeting, shall be given at
least five days prior to the meeting by written notice mailed by first class,
certified or registered mail, to each director at his business or residence
address or by notice given at least two days prior to the meeting by personal
delivery or by telephone, telegraph, telecopier, telex or other similar
device. The method of notice need not be the same to each director. If
mailed, such notice shall be deemed to be given two days after such notice is
deposited in the United States mail so addressed, with postage thereon
prepaid. If personally delivered, notice shall be deemed to be given when
delivered to the director. If notice is given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company. When any notice is required to be given to any director of the
corporation under the provisions of the General Corporation Law of Delaware
or under the provisions of the certificate of incorporation or these bylaws,
a waiver thereof in writing signed by the person entitled to such notice,
whether before, at, or after the time stated therein, shall be equivalent to
the giving of such notice. By attending or participating in a regular or
special meeting, a director waives any required notice of such meeting unless
the director, at the beginning of the meeting, objects to the holding of the
meeting or the transacting of business at the meeting. Neither the business
to be transacted at, nor the purpose of, any meeting of the board of
directors need be specified in the notice or waiver of notice of such meeting.
Section 7. Presumption of Assent. A director who is present at a meeting
of the board or a committee of the board when corporate action is taken is
deemed to have assented to the action taken unless: (a) he objects at the
beginning of such meeting to the holding of the meeting or the transacting of
business at the meeting; (b) he contemporaneously requests that his dissent
from the action taken be entered in the minutes of such meeting; or (c) he
gives written notice of his dissent to the presiding officer of such meeting
before its adjournment or to the secretary of the
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corporation immediately after adjournment of such meeting. Such right of
dissent as to a specific action taken in a meeting of the board or a
committee shall not be available to a director who votes in favor of such
action.
Section 8. Quorum and Voting. A majority of the number of directors
fixed by Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the board of directors, and the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors. If less than a quorum is
present at a meeting, the directors present may adjourn the meeting from time
to time without further notice other than an announcement at the meeting. No
director may vote or act by proxy at any meeting of directors.
Section 9. Compensation. By resolution of the board of directors,
any director may be paid any one or more of the following: his expenses, if
any, of attendance at meetings; a fixed sum for attendance at each meeting; a
stated salary as director; or such other compensation as the corporation and
the director may reasonably agree upon. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
Section 10. Meetings by Telephone. Unless otherwise provided by the
certificate of incorporation, one or more members of the board of directors or
any committee designated by the board may participate in a meeting of the board
or committee by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each other
at the same time. Such participation shall constitute presence in person at the
meeting.
Section 11. Action Without a Meeting. Any action required or permitted
by the General Corporation Law of Delaware to be taken at a meeting of the
board of directors or any committee designated by the board may be taken
without a meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each director or committee member, and
delivered to the secretary for inclusion in the minutes or for filing with
the corporate records. Any such action by written consent shall be effective
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date. Such consent has the same
force and effect as a unanimous vote of the directors or committee members
and may be stated as such in any document.
Section 12. Order of Business. So far as applicable, the order of
business at each meeting of the board of directors shall be as follows:
(a) Call to order.
(b) Roll call -- determination of quorum.
(c) Proof of due notice of meeting or waiver thereof.
(d) Reading and approval of minutes of previous meeting.
(e) Unfinished business.
(f) New business including, but not limited to:
(i) Management reports
(ii) Ratification of acts of officers
(iii) Election of officers
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(iv) Determination of number of directors to be elected at the
annual meeting of shareholders
(v) Fixing the time and place for the next regular meeting
(g) Adjournment.
Section 13. Executive and Other Committees. By one or more
resolutions, the board of directors may designate from among its members an
executive committee and one or more other committees, each of which, to the
extent provided in the resolution establishing such committee, shall have and
may exercise all of the authority of the board of directors, except as
otherwise provided by the General Corporation Law of Delaware. Neither the
designation of any such committee, the delegation of authority to such
committee, nor any action by such committee pursuant to its authority shall
alone constitute compliance by any member of the board of directors, not a
member of the committee in question, with his responsibility to act in good
faith, in a manner he reasonably believes to be in the best interests of the
corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
Section 14. Standard of Care. A director shall perform his duties as a
director, including his duties as a member of any committee of the board upon
which he may serve, in good faith, in a manner he reasonably believes to be
in the best interests of the corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports, or statements, including financial statements and other
financial data, in each case prepared or presented by persons and groups
herein designated; but he shall not be considered to be acting in good faith
if he has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A person who so performs his duties shall not
have any liability by reason of being or having been a director of the
corporation. The designated groups on which a director is entitled to rely
are:
(a) one or more officers or employees of the corporation whom
the director reasonably believes to be reliable and competent in the matters
presented; (b) counsel, public accountants, or other persons as to matters
which the director reasonably believes to be within such person's
professional or expert competence; or (c) a committee of the board upon which
he does not serve, duly designated in accordance with Section 13 of these
bylaws, as to matters within its designated authority, which committee the
director reasonably believes to merit confidence.
Section 15. Conflicts of Interest. No contract or transaction between
the corporation and one or more of its directors, or between the corporation
and any other corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or officers or
have a financial interest, shall be void or voidable solely for that reason
or solely because the director or officer is present at or participates in
the meeting of the board or committee thereof which authorizes, approves, or
ratifies the contract or transaction or solely because his or their votes are
counted for such purpose if: (a) the material facts as to his relationship
or interest and as to the contract or transaction are disclosed or are known
to the board of directors or the committee, and the board or committee in
good faith authorizes, approves, or ratifies the contract or transaction by
the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors are less than a quorum; or (b) the
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material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract or transaction is specifically authorized,
approved, or ratified in good faith by vote of the shareholders; or (c) the
contract or transaction was fair as to the corporation. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes, approves, or
ratifies the contract or transaction.
ARTICLE IV
Officers and Agents
Section 1. General. The principal officers of the corporation shall be a
president, a secretary and a treasurer. The board of directors may also
elect or appoint such other officers, assistant officers, committees and
agents, including one or more vice presidents, a chairman of the board, a
controller, assistant secretaries and assistant treasurers, as they may
consider necessary, who shall be chosen in such manner and hold their offices
for such terms and have such authority and duties as from time to time may be
determined by the board of directors. One person may hold more than one
office, except that no person may simultaneously hold the offices of
president and secretary. In all cases where the duties of any officer, agent
or employee are not prescribed by the bylaws or by the board of directors,
such officer, agent or employee shall follow the orders and instructions of
the president. All officers shall be natural persons, eighteen years of age
or older, and the president shall be one of the directors.
Section 2. Election and Term of Office. The principal officers of the
corporation shall be elected by the board of directors annually at the first
meeting of the board held after each annual meeting of the shareholders. If
the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as conveniently may be. Each officer shall
hold office until his successor shall have been elected, appointed or chosen
and shall have qualified, or until his earlier death, resignation or removal.
Section 3. Removal. Any officer or agent may be removed by the board of
directors or by the executive committee, if any, whenever in its judgment the
best interests of the corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not in itself
create contract rights.
Section 4. Vacancies. Any officer may resign at any time, subject to any
rights or obligations under any existing contracts between the officer and
the corporation, by giving written notice to the president or to the board of
directors. An officer's resignation shall take effect at the time specified
in such notice, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. A vacancy in
any office, however occurring, may be filled by the board of directors.
Section 5. President. The president shall, subject to the direction and
supervision of the board of directors: (a) be the chief executive officer of
the corporation and have general and active control of its affairs and
business and general supervision of its officers, agents and employees; (b)
unless there is a chairman of the board, preside at all meetings of the
shareholders and the board of directors; (c) see that all orders and
resolutions of the board of directors are
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carried into effect; and (d) in general, perform all duties incident to the
office of president and such other duties as from time to time may be
assigned to him by the board of directors.
Section 6. Vice Presidents. The vice president, if any (or if there is
more than one then each vice president), shall assist the president and shall
perform such duties as may be assigned to him by the president or by the
board of directors. The vice president, if there is one (or if there is more
than one then the vice president designated by the board of directors, or if
there be no such designation then the vice presidents in order of their
election), shall, at the request of the president, or in the event of his
absence, death or inability or refusal to act, perform the duties of the
president and when so acting shall have all the powers of and be subject to
all the restrictions upon the president.
Section 7. Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, the board of directors, and any committees
of the board; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or otherwise as required by law; (c) be custodian
of the corporate records and of the seal of the corporation and affix the
seal to all documents when authorized by the board of directors; (d) keep at
its registered office or principal place of business within or outside
Delaware a record containing the names and addresses of all shareholders and
the number and class of shares held by each, unless such a record shall be
kept at the office of the corporation's transfer agent or registrar; (e)
sign with the president, or a vice president, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution
of the board of directors; (f) have general charge of the stock transfer
books of the corporation, unless the corporation has a transfer agent; and
(g) in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him by the
president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary.
The directors and/or shareholders may, however, respectively designate a
person other than the secretary or assistant secretary to keep the minutes of
their respective meetings.
Section 8. Treasurer. The treasurer shall: (a) be the principal
financial officer of the corporation and have the care and custody of all its
funds, securities, evidences of indebtedness and other personal property of
the corporation and shall deposit the same in accordance with the
instructions of the board of directors; (b) receive and give receipts and
acquittances for money paid in on account of the corporation, and pay out of
the funds on hand all bills, payrolls and other just debts of the corporation
of whatever nature upon maturity; (c) unless there is a controller, be the
principal accounting officer of the corporation and as such prescribe and
maintain the methods and systems of accounting to be followed, keep complete
books and records of account, prepare and file all local, state and federal
tax returns, prescribe and maintain an adequate system of internal audit and
prepare and furnish to the president and the board of directors statements of
account showing the financial position of the corporation and the results of
its operations; (d) upon request of the board, make such reports to it as may
be required at any time; and (e) in general, perform all duties incident to
the office of treasurer and such other duties as from time to time may be
assigned to him by the board of directors or the president. Assistant
treasurers, if any, shall have the same powers and duties, subject to
supervision by the treasurer.
Section 9. Surety Bonds. The board of directors may require any officer
or agent of the
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corporation to execute and deliver to the corporation a bond in such sums and
with such sureties as shall be satisfactory to the board, conditioned upon
the faithful performance of his duties and for the restoration to the
corporation of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 10. Salaries. The salaries of the officers shall be as fixed
from time to time by the board of directors and no officer shall be prevented
from receiving a salary by reason of the fact that he is also a director of
the corporation.
ARTICLE V
Stock
Section 1. Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including
treasury shares, shall be made only upon authorization by the board of
directors, except as otherwise may be provided by statute.
Section 2. Certificates. The shares of stock of the corporation shall be
represented by certificates signed in the name of the corporation by its
president or a vice president and the secretary or an assistant secretary,
and shall be sealed with the seal of the corporation, or with a facsimile
thereof. Any or all of the signatures on any certificate may also be a
facsimile. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent, or registrar at the date
of its issue. Each certificate for shares shall be consecutively numbered or
otherwise identified, shall state on the face that the corporation is
organized under the laws of the State of Delaware, the name of the person to
whom issued, the number and class of shares and the designation of the
series, if any, which such certificate represents, and the par value of each
share represented by the certificate or a statement that the shares are
without par value. Each certificate shall be otherwise in such form
consistent with law as shall be prescribed by the board of directors.
Restrictions imposed by the corporation on the transferability of the shares
shall be noted or referred to conspicuously on the certificate. No
certificates shall be issued until the shares represented thereby are fully
paid.
Section 3. Consideration for Shares. Each share of stock, when issued,
shall be fully paid and nonassessable. The shares of the corporation shall
be issued for such consideration expressed in dollars (but not less than the
par value thereof, with respect to shares having a par value) as shall be
fixed from time to time by the board of directors. The consideration for the
issuance of shares may be paid, in whole or in part, in money, in other
property, tangible or intangible, or in labor or services actually performed
for the corporation. The promise of future services shall not constitute
payment or part payment for shares of the corporation, and neither the
promissory note of a subscriber or direct purchaser of shares from the
corporation, nor the unsecured or nonnegotiable promissory note of any other
person shall constitute payment or part payment for shares of the
corporation. The judgment of the board of directors as to the value of any
property or services received shall, in the absence of fraud or bad faith, be
conclusive upon all persons. Treasury shares shall be disposed of for such
consideration expressed in dollars as may be fixed from time to time by the
board of directors.
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Section 4. Lost Certificates. In case of the alleged loss, destruction
or mutilation of a certificate of stock, the board of directors may direct
the issuance of a new certificate in lieu thereof upon such terms and
conditions in conformity with law as the board may prescribe. The board of
directors may in its discretion require a bond in such form and amount and
with such surety as it may determine, before issuing such a new certificate.
Section 5. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock 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 of stock shall be entered on the stock books of the corporation.
Section 6. Holders of Record. The corporation shall be entitled to treat
the record holder of any shares of the corporation as the owner thereof for
all purposes, including all rights deriving from the shares. The corporation
shall not be bound to recognize any equitable or other claim to or interest
in the shares or rights deriving from the shares on the part of any other
person, including, without limitation, a purchaser, assignee or transferee of
such shares or rights deriving from the shares, unless and until the
purchaser, assignee, transferee or other person becomes the record holder of
the shares, whether or not the corporation shall have either actual or
constructive notice of the interest. Until the purchaser, assignee or
transferee of any of the shares of the corporation has become the record
holder of the shares, he shall not be entitled to receive notice of meetings,
examine lists of the shareholders, receive dividends or other sums payable to
shareholders, or own, enjoy and exercise any other property or rights
deriving from the shares of the corporation.
Section 7. Transfer Agents, Registrars and Paying Agents. The board of
directors may at its discretion appoint one or more transfer agents,
registrars or agents for making payment upon any class of stock, bond,
debenture or other security of the corporation. Such agents and registrars
may be located either within or outside Delaware. They shall have such
rights and duties and shall be entitled to such compensation as may be agreed.
Section 8. Preemptive Rights. No holder of shares of the corporation
of any class shall have any preemptive or preferential right in or preemptive
or preferential right to subscribe to or for or acquire any new or additional
shares, or any subsequent issue of shares, or any unissued or treasury shares
of the corporation, whether now or hereafter authorized, or any securities
convertible into or carrying a right to subscribe to or for or acquire any
such shares, whether now or hereafter authorized.
Section 9. Restrictions on Transfer. The corporation shall have the
right, at any time, by entering into an agreement with the holders of its
then-outstanding stock, to restrict or limit the sale, transfer, assignment,
pledge, hypothecation, encumbrance or other disposition of the shares of the
corporation, or any part thereof. Such restrictions may apply to lifetime
transfers as well as to transfers upon the death of a shareholder.
Regulations regarding the formalities and procedures to be followed in
seeking to effect any transfer that is restricted by such an agreement may be
set forth in the agreement or prescribed in these bylaws. With respect to
any such agreement to which it is a party, the corporation, on its part,
shall observe and carry out the terms thereof and shall refuse to recognize
any sale, transfer, assignment, pledge, hypothecation,
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encumbrance or other disposition of any of the shares covered by the
agreement unless the same are in conformity with the terms and conditions of
the agreement and with these bylaws. Following its adoption, a copy of any
such agreement shall be filed in the principal office of the corporation, and
notice of the existence of such agreement shall be displayed conspicuously on
the face or back of each certificate representing shares subject to the terms
and conditions of such agreement.
ARTICLE VI
Indemnification
Section 1. Definitions. For purposes of this Article VI, the following
terms shall have the meanings set forth below:
(a) Action - Any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative;
(b) Derivative Action - Any Action by or in the right of the
corporation to procure a judgment in its favor;
(c) Third Party Action - Any Action other than a Derivative
Action;
(d) Indemnified Party - Any person who is or was a party or is
threatened to be made a party to any Action by reason of the fact that he is
or was a director, officer, employee, fiduciary or agent of the corporation
or is or was serving at the request of the corporation as a director,
officer, employee, fiduciary or agent of another corporation, partnership,
joint venture, trust or other enterprise, including without limitation any
employee benefit plan of the corporation for which any such person is or was
serving as trustee, plan administrator or other fiduciary.
Section 2. Third Party Actions. The corporation shall indemnify any
Indemnified Party against expenses (including attorneys' fees), judgments,
fines, excise taxes and amounts paid in settlement actually and reasonably
incurred by him in connection with any Third Party Action if, as determined
pursuant to Section 5 below, he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal Action, had no reasonable cause
to believe his conduct was unlawful.
Section 3. Derivative Actions. The corporation shall indemnify any
Indemnified Party against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
any Derivative Action if, as determined pursuant to Section 5 below, he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such
person is or has been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless and only to
the extent that the court in which such Action was brought determines
upon application that, despite the adjudication of liability and in view
of all circumstances of the case, such Indemnified Party is fairly and
reasonably entitled to indemnification for such expenses which such court
deems proper.
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Section 4. Success on Merits or Otherwise. If and to the extent that any
Indemnified Party has been successful on the merits or otherwise in defense
of any Action referred to in Section 2 or 3 of this Article VI, or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith without the necessity of any determination that he
has met the applicable standards of conduct set forth in Section 2 or 3 of
this Article VI.
Section 5. Determination. Except as provided in Section 4, any
indemnification under Section 2 or 3 of this Article VI (unless ordered by a
court) shall be made by the corporation only upon a determination that
indemnification of the Indemnified Party is proper in the circumstances
because he has met the applicable standards of conduct set forth in said
Section 2 or 3. Any indemnification under Section 4 of this Article VI
(unless ordered by a court) shall be made by the corporation only upon a
determination by the corporation of the extent to which the Indemnified Party
has been or would have been successful on the merits or otherwise. Any such
determination shall be made (a) by the board of directors by a majority vote
of a quorum consisting of directors who are not or were not parties to the
subject Action or (b) if such quorum is not obtainable, or even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel
(which counsel shall not be the counsel generally employed by the corporation
in connection with its corporate affairs) in a written opinion, or (c) by the
shareholders of the corporation.
Section 6. Effect of Termination of Action. The termination of any
Action by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create either a presumption
that the indemnified Party did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, or with respect to any criminal Action, a presumption that the
Indemnified Party had reasonable cause to believe that his conduct was
unlawful. Entry of a judgment by consent as part of a settlement shall not be
deemed a final adjudication of liability for negligence or misconduct in the
performance of duty, nor of any other issue or matter.
Section 7. Payment in Advance. Expenses (including attorneys' fees) or
some part thereof incurred by an Indemnified Party in defending any Action,
shall be paid by the corporation in advance of the final disposition of such
Action if a determination to make such payment is made on behalf of the
corporation as provided in Section 5 of this Article VI; provided that no
such payment may be made unless the corporation shall have first received a
written undertaking by or on behalf of the Indemnified Party to repay such
amount unless it is ultimately determined that he is entitled to be
indemnified by the corporation as authorized in this Article VI.
Section 8. Other Indemnification Rights. The indemnification provided
by this Article VI shall not be deemed exclusive of any other rights to which
any Indemnified Party or other person may be entitled under the certificate
of incorporation, any agreement, bylaw (including without limitation any
other or further Section or provision of this Article VI), vote of the
shareholders or disinterested directors or otherwise, and any procedure
provided for by any of the foregoing, both as to action in his official
capacity and as to action in another capacity while holding such office.
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Section 9. Period of Indemnification. Any indemnification pursuant to
this Article VI shall continue as to any Indemnified Party who has ceased to
be a director, officer, employee, fiduciary or agent of the corporation or,
at the request of the corporation, was serving as and has since ceased to be
a director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise, including, without
limitation, any employee benefit plan of the corporation for which any such
person served as a trustee, plan administrator or other fiduciary, and shall
inure to the benefit of the heirs and personal representatives of such
Indemnified Party. The repeal or amendment of this Article VI or of any
Section or provision thereof which would have the effect of limiting,
qualifying or restricting any of the powers or rights of indemnification
provided or permitted in this Article VI shall not, solely by reason of such
repeal of amendment, eliminate, restrict or otherwise affect the right or
power of the corporation to indemnify any person, or affect any right of
indemnification of such person, with respect to any acts or omissions which
occurred prior to such repeal or amendment.
Section 10. Insurance. By action of the board of directors,
notwithstanding any interest of the directors in such action, the corporation
may purchase and maintain insurance, in such amounts as the board may deem
appropriate, on behalf of any Indemnified Party against any liability
asserted against him and incurred by him in his capacity of or arising out of
his status as an Indemnified Party, whether or not the corporation would have
the power to indemnify him against such liability under this Article VI, the
certificate of incorporation or applicable provisions of law.
Section 11. Right to Impose Conditions to Indemnification. The
corporation shall have the right to impose, as conditions to any
indemnification provided or permitted in this Article VI, such reasonable
requirements and conditions as to the board of directors or shareholders may
appear appropriate in each specific case and circumstances, including but not
limited to any one or more of the following: (a) that any counsel
representing the person to be indemnified in connection with the defense or
settlement of any Action shall be counsel mutually agreeable to the person to
be indemnified and to the corporation; (b) that the corporation shall have
the right, at its option, to assume and control the defense or settlement of
any claim or proceeding made, initiated or threatened against the person to
be indemnified; and (c) that the corporation shall be subrogated, to the
extent of any payments made by way of indemnification, to all of the
indemnified person's right of recovery, and that the person to be indemnified
shall execute all writings and do everything necessary to assure such
rights of subrogation to the corporation.
ARTICLE VII
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The board of directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name
unless authorized by a resolution of the board of directors. Such authority
may be general or confined to specific instances.
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Section 3. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, savings and loan associations or other
depositories as shall from time to time be designated by resolution of the
board of directors.
ARTICLE VIII
Books and Records
Section 1. Records Kept. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of its shareholders and board of directors. The corporation
shall also keep, at its registered office or principal place of business or
at the office of its transfer agent or registrar either within or outside
Delaware, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of the shares held by each. Any books,
records or minutes of the corporation may be in written form or in any form
capable of being converted into written form within a reasonable time.
Section 2. Right to Inspect and Copy. Any person who has been a holder
of record of shares of the corporation or of voting trust certificates
therefor for at least three months immediately preceding his demand or who is
the holder of record of, or the holder of record of voting trust certificates
for, at least five percent of all outstanding shares of the corporation, upon
written demand stating the purpose thereof, shall have the right to examine,
in person or by agent or attorney, at any reasonable time and for any proper
purpose, the corporation's books and records of account, minutes and record
of holders of shares and of voting trust certificates therefor and to make
extracts therefrom.
Section 3. Financial Statements. Upon the written request of any
shareholder of the corporation, the corporation shall mail to the shareholder
its last annual and most recently published financial statements showing in
reasonable detail its assets and liabilities and the results of its
operations.
ARTlCLE IX
Miscellaneous
Section 1. Dividends. Subject to the provisions of the General
Corporation Law of Delaware, the board of directors may from time to time
declare, and the corporation may pay, dividends in cash, property or its own
shares, except when the corporation is unable to pay its debts as they become
due in the usual course of its business, or when the payment thereof would
render the corporation unable to pay its debts as they become due in the
usual course of its business, or when the declaration or payment thereof
would be contrary to any restriction contained in the certificate of
incorporation or these bylaws.
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Section 2. Fiscal Year. The fiscal year of the corporation shall be as
established by resolution of the board of directors.
Section 3. Seal. The board of directors shall adopt a corporate seal
which shall be circular in form and shall have inscribed on the periphery the
name of the corporation and the state of incorporation. In the center of the
seal there shall be the word "Seal."
Section 4. Amendment. The board of directors may amend or repeal the
bylaws unless the shareholders, in amending or repealing a particular bylaw,
provide expressly that the directors may not amend or repeal such bylaw. The
shareholders may amend or repeal the bylaws even though the bylaws may also
be amended or repealed by the board of directors. The bylaws may contain any
provision for the regulation and management of the affairs of the corporation
not inconsistent with law or the certificate of incorporation.
KNOW ALL MEN BY THESE PRESENTS, that the foregoing bylaws, consisting of
17 pages, including this page, constitute the bylaws of MTR Gaming Group,
Inc. adopted by the board of directors of the corporation as of January 27,
1998.
/s/ Robert L. Ruben
------------------------------------
Robert L. Ruben, Assistant Secretary
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