THE MAJESTIC STAR CASINO, LLC Amendment Number One to Fourth Amended And Restated Operating Agreement
Exhibit
3.2
THE
MAJESTIC STAR CASINO, LLC
Amendment
Number One to Fourth Amended And Restated Operating Agreement
THIS
AMENDMENT NUMBER ONE TO FOURTH AMENDED AND RESTATED OPERATING AGREEMENT
("Agreement") of The Majestic Star Casino, LLC (the “Company”) is executed as of
the 23rd day of March, 2009, by XXXXXX DEVELOPMENT, INC., an Indiana corporation
having an address at Xxx Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxx 00000
("Xxxxxx").
WHEREAS,
the Company desires to amend Article IX of the Agreement in the manner set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section
9.2 of Article IX of the Agreement is hereby deleted in its entirety and
replaced with the following provisions:
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Indemnification. Except
as otherwise provided in this Article IX, the Company shall indemnify any
Manager, any Member, any officer, manager, or director of a Manager or
Member, and any director or officer of the Company, and may indemnify any
employee who is not an officer, manager or director of the Company or of
the Manager or Member, who was or is a party or is threatened to be made a
party to a threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether
formal or informal (other than an action by or in the right of the
Company) by reason that such person is or was a manager, member, officer,
director or employee of the Company or of a Manager or Member, against
expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person
in connection with the action, suit or proceeding, but only if the person
acted in good faith and in a manner that such person believed to be in the
best interests of the Company, and, with respect to a criminal action or
proceeding, if such person believed his conduct was not
unlawful. Any indemnification permitted under this Section 9.2
shall (unless ordered by a court) be made by the Company only as
authorized in the specific case, upon a determination that the
indemnification is proper under the circumstances because the person to be
indemnified has met the applicable standard of conduct and upon an
evaluation of the reasonableness of expenses and amount paid in
settlement. Notwithstanding the foregoing, no indemnification
shall be provided to any person for or in connection with (i) the receipt
of a financial benefit to which such person is not entitled, (ii) voting
for or assenting to a distribution to Members in violation of this
Agreement or the Act, or (iii) a knowing violation of
law.
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Advancement. Reasonable
expenses, including attorneys' fees, incurred by any Manager, Member,
officer, director or manager of a Manager or Member and any officer,
manager or director of the Company who may be eligible for indemnification
under this Section 9.2 in defending a proceeding shall be advanced
by the Company on behalf of such person (by paying such expenses on the
person's behalf or by reimbursement) prior to the final disposition
of such proceeding, including any appeal therefrom, and may be advanced by
the Company on behalf of an employee who is not an officer, manager or
director of the Company, Manager or Member, in accordance with this
paragraph. A person requesting advancement of such
expenses must provide to the Company an undertaking, which may be
unsecured, to repay any expenses advanced by the Company if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Company and provide a written affirmation of that
person's good faith belief that he or she has met the standard of conduct
necessary for indemnification by the Company as authorized in this
section. An advancement of expenses will be authorized by the Company only
if a determination is made on behalf of the Company that the facts then
known to those making the determination would not preclude indemnification
of the person making a request for advancement of expenses under this
section because the person has met the standard of conduct expressed in
the first paragraph (Indemnification) of this Section 9.2. Such
authorizations and determinations shall be made: (1) by the
Board of Directors by a majority vote of a quorum consisting of directors
not at the time parties to the proceeding; or (2) if such a quorum cannot
be obtained, then by a majority vote of a committee of the board, duly
designated to act in the matter by a majority vote of the full board (in
which designation directors who are parties may participate), consisting
solely of director(s) not at the time parties to the proceeding; or (3) by
special legal counsel, selected by the board of directors or a committee
thereof by vote as set forth herein, or, if the requisite quorum of the
full board cannot be obtained therefor and such committee cannot be
established, by a majority vote of the full board (in which selection
directors who are parties may participate); or (4) by the
Members. Advancements of expenses will be made promptly as
incurred upon submission of evidence of those expenses reasonably
acceptable to the Company, subject to the Company's reserved right to
determine the reasonableness of the amounts of any such
expenses. The determination of reasonableness of expenses
requested to be advanced on behalf of a person shall be made in the same
manner as specified above or by any person to whom the Board of Directors,
committee, special legal counsel or Member, as the case may be, may
delegate such duty.
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2. Except
for the amendment to the Agreement set forth herein, all other provisions of the
Agreement shall remain unchanged and in force and effect.
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
(Signature
page follows)
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MAJESTIC
HOLDCO, LLC
The Sole
Member of The Majestic Star Casino, LLC
By:
/s/ Xxx X.
Xxxxxx
Xxx X. Xxxxxx, President
Xxxxxx
Development, Inc.
Sole
Manager of Majestic Holdco, LLC
XXXXXX
DEVELOPMENT, INC.,
The Sole
Manager of The Majestic Star Casino, LLC
By: /s/
Xxx X.
Xxxxxx
Xxx X. Xxxxxx, President
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