EXHIBIT 3.4
BY-LAWS
OF
METRO TOURISM AND ENTERTAINMENT, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The corporation shall have
and continuously maintain in the State of Illinois a registered office which
may be, but need not be, the same as its place of business in the State of
Illinois.
SECTION 2. REGISTERED AGENT. The corporation shall have and
continuously maintain in the State of Illinois a registered agent, which
agent may be either an individual, resident in the State of Illinois, whose
business office is identical with the corporation's registered office, or an
Illinois corporation or a foreign corporation authorized to transact business
in the State of Illinois that is authorized by its articles of incorporation
to act as such agent, having a business office identical with the
corporation's registered office.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. There shall be an annual
meeting of METRO TOURISM AND ENTERTAINMENT, INC., an Illinois corporation,
which meeting shall be held on the 4th Saturday of October of each year
succeeding the incorporation. The annual meeting shall be for the purpose of,
but not limited to, the election of directors of said corporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders may be called by the president, by the board of directors, or by
the holders of not less than one-half (1/2) of all the outstanding shares
entitled to vote on the matter for which the meeting is called or by such
other officers or persons as may be provided in the articles of incorporation.
SECTION 3. PLACE OF MEETING. Meetings of shareholders shall
be held at such place, either within or without the State of Illinois, as may
be provided in a resolution of the board of directors. In the absence of any
such provision, all meetings shall be held at the registered office of the
corporation in the State of Illinois.
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SECTION 4. NOTICE OF MEETINGS. Unless specifically provided
otherwise in the Shareholder's Agreement, written notice 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 be delivered not
less then ten (10) nor more than sixty (60) days before the date of the
meeting, or in the case of a merger, consolidation, share exchange,
dissolution or sale, lease or exchange of assets not less than twenty (20)
nor 'more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the president, or the
secretary, or the officer or persons calling the meeting, to each shareholder
of record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail addressed to
the shareholder at his or her address as it appears on the records of the
corporation, with postage thereon prepaid.
SECTION 5. CONDUCT OF MEETINGS. The latest edition of
Roberts Rules of Order shall govern the conduct of each meeting.
SECTION 6. CLOSING OF TRANSFER BOOKS AND FIXING RECORD
DATE. For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shareholders
for any other proper purpose, the board of directors of the corporation may f
ix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than sixty (60) days and,
for a meeting of shareholders, not less than ten (10) days, or in the case of
a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty (20) days, immediately preceding the
meeting. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the
board of directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this Section, such determination shall apply to
any adjournment thereof.
SECTION 7. VOTING LISTS. The officer or agent having charge
of the transfer books for shares of the corporation shall make, within twenty
(20) days after the record date for a meeting of shareholders or ten (10)
days before such meeting, whichever is earlier, a complete list of the
shareholders entitled to vote at such meeting, arranged in alphabetical
order, with the address of and the number of shares held by each, which list,
for a period of ten (10) days prior to such meeting, shall be kept on file at
the registered office of the corporation and shall be subject to inspection
by any shareholder, and to copying at the shareholder's expense, at any time
during usual business hours. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection
of any shareholder during the whole time of the meeting. The original share
ledger or transfer book, or a duplicate thereof kept in the State of
Illinois, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or share ledger or transfer book or to vote at
any meeting of shareholders.
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SECTION 8. INSPECTORS. At any meeting of shareholders, the
chairman of the meeting may, or upon the request of any shareholder shall
appoint one or more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of
shares represented at the meeting, based upon their determination of the
validity and effect of proxies; count all votes and report the results; and do
such other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by
him or her or by a majority of them if there be more than one inspector acting
at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors
on the number of shares represented at the meeting and the results of the voting
shall be prima facie evidence thereof.
SECTION 9. VOTING OF SHARES. Except as otherwise provided
by the articles of incorporation, each outstanding voting share, shall be
entitled to one (1) vote on each matter submitted to a vote at a meeting of
shareholders, and except as specifically provided in Section 8 of Article III
of these by-laws, in all elections for directors, every shareholder owning
voting common stock shall have the right to vote the number of shares owned
by such shareholder for as many persons as there are directors to be elected,
or to cumulate such votes and give one candidate as many votes as shall equal
the number of directors multiplied by the number of such shares or to
distribute such cumulative votes in any proportion among any number of
candidates. A shareholder may vote either in person or by proxy subject to
the provisions of Section 12 of Article II of these by-laws. Nonvoting common
stock does not afford its holders the right to vote on any corporate matters.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares
registered in the name of another corporation, domestic or foreign, may be
voted by any officer, agent, proxy or other legal representative authorized
to vote such shares under the law of incorporation of such corporation. A
corporation may treat the president or other person holding the position of
chief executive officer of such other corporation as authorized to vote such
shares, together with any other person indicated and any other holder of an
office indicated by the corporate shareholder to the corporation as a person
or an office authorized to vote such shares. Such persons and offices
indicated shall be registered by the corporation on the transfer books for
shares and included in any voting list prepared in accordance with that
Section pertaining to voting lists.
Shares of a corporation held by the corporation in a
fiduciary capacity may be voted and shall be counted in determining the total
number of outstanding shares entitled to vote at any given time.
Subject to the terms and conditions of a Shareholders'
Agreement by and between the corporation and all of its shareholders, shares
registered in the name of a deceased person may not
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be voted by his or her administrator, executor, or court-appointed guardian,
either in person or by proxy without the written consent of a majority of the
remaining shares entitled to vote, excluding the shares registered in the
name of the deceased person.
Shares registered in the name of a receiver may not be voted
by such receiver, and shares held by or under the control of a receiver may not
be voted by such receiver.
Shares of the corporation belonging to the corporation shall
not be voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but shares
of the corporation held by the corporation in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares at
any given time.
SECTION 11. QUORUM AND ADJOURNMENTS. Unless otherwise provided
in the articles of incorporation, a majority of the outstanding shares, entitled
to vote on a matter, represented in person or by proxy, shall constitute a
quorum for consideration of such matter at a meeting of shareholders. If a
quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on a matter shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by the Act or the articles of incorporation. If less than a majority of
the outstanding shares represented at said meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. At
such adjourned meeting at which a quorum shall be represented, any business may
be transacted which might have been transacted at the meeting as originally
noticed. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal off such
number of shareholders as may leave less than a quorum.
SECTION 12. PROXIES.
(a) A shareholder may appoint a proxy to vote or otherwise act
for him or her by signing an appointment form and delivering it to the person so
appointed.
(b) No proxy shall be valid after the expiration of eleven
(11) months from the date thereof unless otherwise provided in the proxy. Every
proxy continues in full force and effect until revoked by the person executing
it prior to the vote pursuant thereto, except as otherwise provided in this
Section. Such revocation may be effected by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy executed
by, or by attendance at the meeting and voting in person by, the person
executing the proxy. The dates contained on the forms of proxy presumptively
determine the order of execution, regardless of the postmark dates on the
envelopes in which they are mailed.
(c) A shareholder may irrevocably appoint another as proxy,
provided such appointment form states conspicuously that it is irrevocable AND
the proxy is coupled with an
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interest in the shares of the corporation and otherwise complies with the
provisions of Section 1.50(e) of The Business Corporation Act of 1983, as
amended.
(d) The death or incapacity of the shareholder appointing a
proxy does not revoke the proxy's authority unless notice of the death or
incapacity is received by the officer or agent who maintains the corporation's
share transfer book before the proxy exercises his or her authority under the
appointment.
(e) Unless the appointment of a proxy contains an express
limitation on the proxy's authority, the corporation may accept the proxy's vote
or other action as that of the shareholder making the appointment. If the proxy
appointed fails to vote or otherwise act in accordance with the appointment, the
shareholder is entitled to such legal or equitable relief as is appropriate in
the circumstances.
SECTION 13. CUMULATIVE VOTING. In all elections for directors,
every shareholder shall have the right to vote, in person or by proxy, the
number of shares owned by him, for as many persons as there are directors to be
elected, or to cumulate said shares, and give one candidate as many votes as the
number of directors multiplied by the number of his shares equal, or to
distribute them on the same principle among as many candidates as he shall see
fit.
SECTION 14. INFORMAL ACTION BY SHAREHOLDERS.
(a) Unless otherwise provided in the articles of
incorporation, any action required by the Business Corporation Act to be taken
at any annual or special meeting of the shareholders of the corporation, or any
other action which be taken at a meeting of the shareholders, may be taken
without a meeting and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed:
(i) by all of the shareholders entitled to vote with
respect to the subject matter thereof; or
(ii) by the holders of outstanding shares 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 voting; provided that five (5) days prior
notice of the proposed action shall have been given in writing to all
of the shareholders entitled to vote with respect to the subject matter
thereof.
(b) Prompt notice of the taking of any such action without a
meeting by less than unanimous written consent shall be given in writing to
those shareholders who have not consented in writing.
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ARTICLE III
DIRECTORS
SECTION I. AUTHORITY.
(a) The corporation shall have a board of directors and the
business and affairs of the corporation shall be managed by or under the
direction of the board of directors.
(b) A director need not be a resident of the State of Illinois
or a shareholder of the corporation unless the articles of incorporation so
prescribe.
SECTION 2. NUMBER, ELECTION AND RESIGNATION
OF DIRECTORS.
(a) The initial number of directors of the corporation shall
be seven (7). The number of directors shall be increased or decreased from time
to time to correspond exactly to the number of individuals or Qualified
Subchapter S Trusts owning voting common stock.
(b) The terms of all directors expire at the next annual
stockholders' meeting following their election. The term of a director elected
to fill a vacancy expires at the next annual shareholders' meeting at which his
or her predecessor's term would have expired. The term of a director elected as
a result of an increase in the number of directors expires at the next annual
shareholders' meeting.
Despite the expiration of a director's term, he or she
continues to serve until the next meeting of shareholders at which directors are
elected. A decrease in the number of directors does not shorten an incumbent
director's term.
(c) A director may resign at any time by giving written notice
to the board of directors, its chairman, or to the president or secretary of the
corporation. A resignation is effective when the notice is given unless the
notice specifies a future date. The pending vacancy may be filled before the
effective date, but the successor shall not take office until the effective
date.
SECTION 3. REGULAR MEETINGS. There shall be a regular meeting
of the board of directors without other notice than this by-law immediately
after and at the same place as the annual meeting of shareholders. The board of
directors may provide, by resolution, the time and place, either within or
without the State of Illinois, for the holding of additional regular meetings
without notice other than such resolution.
SECTION 4. SPECIAL MEETINGS. A special meeting of the board of
directors may be held either within or without the State of Illinois and said
meeting may be called at the request of the president or any two (2) members of
the board of directors.
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SECTION 5. ATTENDANCE AT MEETINGS. Unless specifically
prohibited by the articles of incorporation, members of the board of directors
or of any committee of the board of directors may participate in and act at any
meeting of such board or committee through the use of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in such meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
participating.
SECTION 6. NOTICE. Notice of any special meeting shall be
given at least five (5) days previous thereto by written notice to each director
at such director's address. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid if notice is to be given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
The attendance of a director at any meeting shall constitute a waiver of notice
of such meeting except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 7. QUORUM. A majority of the number of directors fixed
by these by-laws shall constitute a quorum for transaction of business at any
meeting of the board of directors, provided that if less than a majority of such
number of board of directors are present at said meeting, a majority of the
directors present may adjourn the meeting at any time without further notice.
SECTION 8. MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors, unless the act of a greater number is required by
statute, these by-laws, the articles of incorporation, or the Shareholder's
Agreement.
SECTION 9. VACANCIES. Any vacancy occurring in the board of
directors and any directorship to be filled by reason of an increase in the
number of directors may be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose; provided, however, that
the board of directors may fill vacancies arising between the meetings of
shareholders by reason of an increase in the number of directors or otherwise. A
director elected by the shareholders to fill a vacancy shall hold office for the
balance of the term for which he or she was elected. A director appointed to
fill a vacancy shall serve until the next meeting of shareholders at which
directors are to be elected.
SECTION 10. INFORMAL ACTION BY DIRECTORS.
(a) Unless specifically prohibited by the articles of
incorporation, any action required by the Act to be taken at a meeting of the
board of directors, or any other action may be taken at a meeting of the board
of directors or a committee thereof, may be taken without a meeting if a consent
in writing, setting forth the action so taken, shall be signed by all the
directors entitled to
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vote with respect to the subject matter thereof, or by all the members of such
committee, as the case may be.
(b) The consent shall be evidenced by one or more written
approvals, each of which sets forth action taken and bears the signature of one
or more directors. All the approvals evidencing the consent shall be delivered
to the secretary to be filed in the corporate records. The action taken shall be
effective when all the directors have approved the consent unless the consent
specifies a different effective date.
(c) Any such consent signed by all the directors or all the
members of a committee shall have the same effect as a unanimous vote.
SECTION 11. COMPENSATION. The board of directors, in
accordance with these by-laws shall have the authority to establish reasonable
compensation for themselves in performing their duties as directors and for
payment of their reasonable expenses, notwithstanding the provisions of Section
14 of Article III of these by-laws. No such payment shall preclude any director
from serving the corporation in any other capacity and from receiving
compensation therefor.
SECTION 12. REMOVAL OF DIRECTORS. One or more of the directors
may be removed, with or without cause, at a meeting of the shareholders by the
affirmative vote of the holders of a majority of the outstanding shares then
entitled to vote at an election of directors, except as follows:
(a) No director shall be removed at a meeting of shareholders
unless the notice of such meeting shall state that a purpose of the meeting is
to vote upon the removal of one or more directors named in the notice. Only the
named director or directors may be removed at such meeting.
(b) If less than the entire board is to be removed, no
director may be removed, with or without cause, if the votes cast against his or
her removal would be sufficient to elect him or her if then cumulatively voted
at an election of the entire board of directors.
SECTION 13. COMMITTEES.
(a) A majority of the directors may create one or more
committees and appoint members of the board to serve on the committees. Each
committee shall have two (2) or more members, who serve at the pleasure of the
board.
(b) Unless the appointment by the board of directors requires
a greater number, a majority of any committee shall constitute a quorum and a
majority of a quorum is necessary for committee action. A committee may act by
unanimous consent in writing without a meeting and, subject to the provisions of
the by-laws or actions by the board of directors, the committee by majority vote
of its members shall determine the time and place and the notice required
therefor.
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(c) To the extent specified by the board of directors or in
the articles of incorporation each committee may exercise the authority of the
board of directors under Section 1 of Article III of these by-laws; provided,
however, a committee may not: (1) authorize distributions; (2) approve or
recommend to shareholders any act the Act requires to be approved by
shareholders; (3) fill vacancies on the board or on any of its committees; (4)
elect or remove officers of fix the compensation of any member of the committee:
(5) adopt, amend or repeal these by-laws; (6) approve a plan of merger not
requiring shareholder approval; (7) authorize or approve reacquisition of
shares, except according to a general formula or method prescribed by the board;
(8) authorize or approve the issuance or sale, or contract for sale, of shares
or determine the designation and relative rights, preferences, and limitations
of a series of shares, except that the board may direct a committee to fix the
specific terms of the issuance or sale or contract for sale or the number of
shares to be allocated to particular employees under an employee benefit plan,
or (9) amend, alter, repeal, or take action inconsistent with any resolution or
action of the board of directors when the resolution or action of the board of
directors provides by its terms that it shall not be amended, altered or
repealed by action of a committee.
SECTION 14. PRESUMPTION OF ASSENT. A director of the
corporation who is present at a meeting of the board of directors at which
action on any corporate matter is taken shall be conclusively presumed to have
assented to the action taken unless his dissent is entered in the minutes of the
meeting or unless he files his written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or
forwards such dissent by registered or certified mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent does not apply to a director who voted in favor of such action.
SECTION 15. DIRECTOR CONFLICT OF INTEREST.
(a) Conflicts of Interest and Company Opportunity. Each
director recognizes the important role loyalty to the company plays in the
successful pursuit of the business endeavors of the company. The purpose of this
paragraph (a) and its subparagraphs is NOT to abrogate or confine the
application of corporate common law doctrines of "Conflict of Interest" or the
"Corporate Opportunity Doctrine" to the transactions and behavior of the company
and its directors. Rather, the purpose of this provision is to crystallize the
importance of these matters to each director.
(1) Conflict of Interest. A director has a conflict of
interest in any transaction with company by which he personally prof its or in
which he has a personal interest. Such transaction shall not be void or voidable
solely on that ground, or solely because the director is present at or
participates in the meeting of the board or directors which authorizes the
transaction. However, such transaction shall be void or voidable unless the
materials fact concerning the director's relationship or interest in the
transaction are disclosed or known to board or committee, and the board or
committee in good faith authorizes, the transaction by the affirmative votes of
a majority of the disinterested board members or directors.
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(i) Interested Director. A director is considered
"interested" when he profits directly on the transaction or when another
director profits directly from the transaction and the first director is a
nominee of the other director or otherwise under the control of the other
interested director. He is also interested if he is a member of the board, or
has a financial interest in another corporation which is involved in the
transaction.
SECTION 16. CORPORATE OPPORTUNITY DOCTRINE. Because of his
fiduciary duty of loyalty, no director shall divert a business opportunity in
which the corporation may reasonably be interested without first giving the
corporation an opportunity to act.
a) Ratification of a Diversion. The diversion of a corporation
opportunity may be ratified by a majority of the disinterested directors. The
director who seeks to divert the opportunity shall not be counted in the quorum
and shall not vote on the issue.
b) Disclosure Required. Ratification of the diversion of a
corporate opportunity is only effective if complete disclosure of the
opportunity has been made to the disinterested directors.
c) Extent of Liability. A director who fails to give the
corporation a chance to act and diverts the opportunity for his personal gain
shall be liable to the corporation for any profit made. Corporation may attach a
constructive trust upon the opportunity.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall
consist of a president, one or more vice-presidents, a treasurer, a secretary,
and such other officers as may be elected by the board of directors. Any two (2)
or more offices may be held by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers, of the
corporation shall be elected annually by the board of directors at the first
meeting of the board of directors held after each annual meeting of
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as practicable. Each officer
shall hold office until such officer's successor shall have been duly elected
and qualified or until his death or until he shall resign or shall have been
removed in the manner herein provided. Election of appointment of an office
shall not of itself create contract rights.
SECTION 3. VACANCIES. Vacancies because of death,
resignation, removal, disqualification or otherwise may be filled by the
board of directors for the unexpired portion of the term.
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SECTION 4. REMOVAL. Any officer or agent may be removed by
the board of directors 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.
SECTION 5. THE PRESIDENT. The president shall be the
principal executive officer of the corporation. Subject to the control of the
board of directors, he shall in general supervise and control all of the
business and affairs of the corporation. The president shall preside at all
meetings of the shareholders and of the board of directors and the president
may sign, with the secretary or any other proper officer of the corporation
thereunto authorized by the board of directors, certificates for shares of
the corporation and deeds, mortgages, bonds, contracts, or other instruments
which the board of directors has authorized to be executed, except in cases
where the signing and execution thereof shall be expressly delegated by the
board of directors or by these by-laws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed;
and in general shall perform all duties incident to the office of president
and such other duties as may be prescribed by the board of directors from
time to time.
SECTION 6. THE VICE-PRESIDENTS. The vice-president (or in
the event there be more than one vice-president, each of the vice-presidents)
shall assist the president in the discharge of his duties as the president
may direct and shall perform such other duties as from time to time may be
assigned to him by the president or by the board of directors. In the absence
of the president or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one vice-president, the
vice-presidents) shall 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. Except in those instances in which the authority to
execute is expressly delegated to another officer or agent of the corporation
or a different mode of execution is expressly prescribed by the board of
directors or these by-laws, the vice-president (or each of them if there are
more than one) may execute for the corporation certificates for its shares
and any contracts, deeds, mortgages, bonds or other instruments which the
board of directors has authorized to be executed, and he may accomplish such
execution either under or without the seal of the corporation and either
individually or with the secretary, any assistance secretary, or any other
officer thereunto authorized by the board of directors, according to the
requirements of the form of the instrument.
SECTION 7. THE SECRETARY. The secretary shall (a) keep the
minutes of the proceedings of the shareholders and of the board of directors
in one or more books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these by-laws or as required
by law; (c) be custodian of the corporate records and of the seal of the
corporation; (d) keep a register of the address of each shareholder which
shall be furnished to the secretary by such shareholder; (e) have general
charge of the stock transfer books of the corporation along with the power to
sign with the president of the corporation certificates for shares of the
corporation, issuance of which shall have been authorized by resolution of
the board of directors; (f) certify these by-laws, resolutions of the
shareholders and board of directors and committees thereof, and other
documents of the corporation as true and correct copies thereof; and (g) in
general perform all duties incident to the office of the secretary and such
other duties as are prescribed by these by-laws or the
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Act or as from time to time may be assigned to the secretary by the president
or by the board of directors.
SECTION 8. THE TREASURER. The treasurer shall (a) have
charge and custody for all of the funds and securities of the corporation and
have charge and be responsible for the maintenance of adequate books of
account for the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as the board of directors may select; and (c) in general perform
all of the duties incident to the office of treasurer and such other duties
as from time to time may be assigned to the treasurer by the president or by
the board of directors. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the board of directors shall determine.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
The assistant secretaries, when authorized by the board of directors, may
sign with the president or vice-president certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution
of the board of directors. The assistant treasurers shall, if required by the
board of directors, give bonds for the faithful discharge of their duties in
such sums and with such sureties as the board of directors shall determine.
The assistant secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the secretary or the treasurer,
respectively, or by the president or the board of directors.
SECTION 10. SALARIES OR COMPENSATION. The board of
directors shall have authority to establish salaries or reasonable
compensation for the officers, and no officer shall be denied compensation by
reason of the fact that he is also a director of the corporation.
ARTICLE V
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 evidences 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.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation
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shall be signed by one or more officers 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 blanks, trust companies or other depositaries as the board
of directors may select.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES,
AND TRANSFER OF SHARES
SECTION 1. CERTIFICATES REPRESENTING SHARES The issued shares
of the corporation shall be represented by certificates. Certificates shall be
signed by the appropriate corporate officers, shall contain such information or
statement as may be required by law, and may be sealed with the seal, or a
facsimile of the seal, of the corporation, if the corporation uses a seal. If a
certificate is countersigned by a transfer agent or registrar, other than the
corporation itself or its employee, any other signatures or countersignature on
the certificate may be facsimiles.
SECTION 2. LOST, DESTROYED OR STOLEN CERTIFICATES. If a
shareholder claims that a stock certificate has been lost, destroyed or
wrongfully taken, the board of directors may, consistent with the requirements
of law, impose reasonable requirements which must be satisfied prior the
issuance of a replacement certificate.
SECTION 3. TRANSFER OF SHARES. Transfer of shares of the
corporation shall be made only on the stock transfer books of the corporation by
the holder of record thereof or by such holder's legal representative, who shall
furnish proper evidence of authority to transfer, or by such holder's attorney
thereunto authorized by power of attorney duly executed and filed with the
secretary of the corporation on surrender for cancellation of the certificate
for such shares. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes. A shareholder's power to transfer his or her shares is limited by the
terms and conditions of a Shareholders Agreement, attached hereby as Exhibit "A"
and incorporated by reference hereby. To the extent there exists any
inconsistencies between the Shareholders Agreement and these by-laws, it is
intended that the Shareholders Agreement shall control. Each certificate
evidencing ownership of shares shall contain the following legend:
The sale, transfer or encumbrance of this certificate is subject to an
Agreement dated ____________________, 1990, among the corporation and
all of its shareholders. A copy of the Agreement is on file in the
office of the secretary of the corporation. The Agreement provides,
among other things, for certain obligations to sell and to purchase the
shares of stock evidenced by this certificate for a designated purchase
price. By accepting the shares of stock evidenced by this certificate
the holder agrees to be bound by said Agreement.
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ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall be the calendar year
commencing January 1 and ending on December 31.
ARTICLE VIII
DISTRIBUTIONS
The board of directors may authorize, and the corporation may
make, distributions to its shareholders, subject to any restrictions in the
articles of incorporation and subject to the limitations provided for in the
Act.
ARTICLE IX
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of
the corporation and the words, Corporate Seal, Illinois.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is whatever required to be given under the
provisions of the Act or under the provisions of the articles of incorporation
or these by-laws, a waiver thereof in writing signed by the person or persons
entitled to such notices whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance at any meeting
shall constitute waiver of notice thereof unless the person at the meeting
objects to the holding of the meeting because proper notice was not given.
ARTICLE XI
AMENDMENTS
Only upon a two-thirds (2/3) majority vote of the Board of
Directors may these by-laws be altered, amended or repealed or new by-laws
adopted.
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ARTICLE XII
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. The corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if be
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 or proceedings, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment or settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interest of the corporation, and with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
SECTION 2. The corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection, with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim issue or matter as to
which such person shall have 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 or suit was brought shall
determine upon application that despite the adjudication of liability, but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expense which the court shall deem proper.
SECTION 3. To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in sections 1 and 2, 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.
SECTION 4. Any indemnification under sections 1 and 2 (unless
order by the court) shall be made by the corporation only as authorized in the
specific case upon a determination that
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indemnification of the director, officer , employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in sections 1 and 2. Such determination shall be made (a) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by a
two-thirds (2/3) majority vote of the shareholders.
SECTION 5. The indemnification provided by this article
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any contract, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 6. The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation
partnership joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this article.
SECTION 7. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding, as authorized by the board
of directors in the specific case, upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount, unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the corporation as authorized in this article.
SECTION 8. If the corporation has paid indemnity or had
advanced expenses to a director, officer, employee or agent, the corporation
shall report the indemnification or advance in writing to the shareholders with
or before the notice of the next shareholders' meeting.
SECTION 9. References to "the corporation" shall include, in
addition to the surviving corporation, any merging corporation, including any
corporation having merged with a merging corporation, absorbed in a merger which
otherwise would have lawfully been entitled to indemnify its directors,
officers, and employees or agents.
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ARTICLE XIII
REPAYMENT OF DISALLOWED DEDUCTION
SECTION 1. FULL REIMBURSEMENT BY OFFICERS. Any payments made
to an officer of the corporation such as salary, commission, bonus, interest,
rent, medical reimbursement or entertainment expense incurred by him which, for
Federal income tax purposes, shall be disallowed in whole or in part as a
deductible expense by the Internal Revenue Service, shall be reimbursed by such
officer to the corporation to the full extent of such disallowance.
SECTION 2. SECURITY FOR REPAYMENT. It shall be the duty of the
directors, as a board, to enforce payment of such amount disallowed. In lieu of
payment by the officer, subject to the determination of the directors,
proportionate amounts may be withheld from his future compensation payments
until the amount owed to the corporation has been recovered.
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STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
THE INDIANA GAMING COMPANY
I, JOSEPH H. HOGSETT, Secretary of State of Indiana, hereby certify that
Articles of Incorporation of the above corporation, have been presented to me at
my office accompanied by the fees prescribed by law; that I have found such
Articles conform to law; all as prescribed by the provisions of the
Indiana Business Corporation Law,
as amended.
NOW, THEREFORE, I hereby issue to such Corporation this Certificate of
Incorporation, and further certify that its corporate existence will begin July
28, 1993.
In Witness Whereof, I have
hereunto set my hand and
affixed the seal of The
State of Indiana, at the
City of Indianapolis, this
Twenty-eighth day of July ,
1993
-------------------------------------
JOSEPH G. HOGSETT, Secretary of State
-------------------------------------
Deputy
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ARTICLES OF INCORPORATION Provided by: EVAN BAYH
State Form 4159 (R6 / 3-88)
Secretary of State
Room 155, State House
INSTRUCTIONS: Use 8 1/2x 11 inch white paper for Indianapolis, Indiana
Inserts. Filing requirements - Present 46204
original and one copy to the address (317) 232-6576
In the upper right corner of this form. Indiana Code 23-1-21-2
FILING FEE $90.00
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ARTICLES OF INCORPORATION OF
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(Indicate the appropriate act)
The undersigned desiring to form a corporation (herein after referred to as
"Corporation") pursuant to the provisions of:
X Indiana Business Corporation Law Indiana Professional Corporation Act 1983
- --- ---
As amended, executes the following Articles of Incorporation:
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ARTICLE I NAME
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Name of Corporation
The Indiana Gaming Company
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(The name must contain the word "Corporation," "Incorporated" "Limited"
"Company" or an abbreviation of one of those words.)
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ARTICLE II REGISTERED OFFICE AND AGENT
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(The street address of the corporation's initial registered office in Indiana
and the name of its initial registered agent at that office is:)
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Name of Agent
C T CORPORATION SYSTEM
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Street Address of Registered Office ZIP Code
ONE NORTH CAPITOL AVENUE, INDIANAPOLIS, INDIANA 46204
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ARTICLE III AUTHORIZED SHARES
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Number of shares: 1000 SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE
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If there is more than one class of shares, shares
rights and preferences, list such information on
"Exhibit A."
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ARTICLE IV INCORPORATORS
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(The name(s) and address(es) of the Incorporator(s) of the corporation:)
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NAME NUMBER AND STREET OR CITY STATE ZIP CODE
BUILDING
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Donald J. Malloy 35 West Wacker Dr Chicago IL 60601
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In Witness Whereof, the undersigned being all the Incorporators of said
corporation execute these Articles of Incorporation and verify, subject to
penalties of perjury, that the statements contained herein are true,
this 21st day of July 1993
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Signature Printed Name
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Signature Printed Name
- -------------------------------------------------------------------------------
Signature Printed Name
- -------------------------------------------------------------------------------
This Instrument was prepared by (Name)
Donald J. Malloy
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Address (Street, Number, City and State) Zip Code
35 West Wacker Drive, Chicago, Illinois 60601
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