EXHIBIT 3.2
BY-LAWS
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OF
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DOVER DOWNS GAMING & ENTERTAINMENT, INC.
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ARTICLE I
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The Corporation
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Section 1.1 Name. The title of this Corporation is Dover Downs Gaming &
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Entertainment, Inc.
Section 1.2 Office. The registered office of this Corporation shall be
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located at 0000 Xxxxxxx Xxxx, 00/xx/ Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or at
such other place as the Board of Directors may designate in accordance with
Section 133 of the Delaware Corporation Law.
Section 1.3 Seal. The corporate seal of the Corporation shall have
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inscribed thereon the name of the Corporation and the year of its creation
(2001) and the words "Incorporated Delaware".
ARTICLE II
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Stockholders
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Section 2.1 Annual Meeting. The annual meeting of stockholders shall be
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held at such place within or without the State of Delaware as the Board of
Directors from time to time determine.
Section 2.2 Special Meetings. Special meetings of stockholders for any
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purpose or purposes may be called at any time by the Chairman of the Board of
Directors, the Chairman of the Executive Committee or the President and not by
any other person.
Section 2.3 Notice of Meetings. Whenever stockholders are required or
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permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation.
Section 2.4 Adjournments. Any meeting of the stockholders, annual or
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special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. 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 stockholder of record entitled to vote at the meeting.
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Section 2.5 Quorum. At each meeting of stockholders, except where
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otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a quorum. In the
absence of a quorum, the stockholders so present may, by majority vote, adjourn
the meeting from time to time in the manner provided in Section 2.4 of these by-
laws until a quorum shall attend.
Section 2.6 Organization. Meetings of stockholders shall be presided
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over by the Chairman of the Board, if any, or in his absence by the President,
or in his absence by the Chairman of the Executive Committee, if any, or in his
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Unless otherwise provided in the
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certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock of Common
Stock and ten votes for each share of Class A Common Stock held by such
shareholder which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A stockholder entitled to vote may authorize a proxy by means of a writing, by
telephone, by the Internet, by other forms of electronic transmission or by any
other manner permitted by law. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A
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stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the holders of a majority
of the outstanding shares of all classes of stock entitled to vote thereon
present in person or by proxy at such meeting shall so determine. At all
meetings of stockholders for the election of directors a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by law or by the certificate of incorporation or these
by-laws, be decided by the vote of the holders of a majority of the voting power
entitled to vote thereon present in person or by proxy at the meeting, provided
that (except as otherwise required by law or by the certificate of incorporation
or these by-laws) the Board of Directors may require a larger vote upon any
election or question.
Section 2.8 Fixing Date for Determination of Stockholders of Record. In
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order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, 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 of exchange or 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 nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; and (2) the record date for determining stockholders for any other purpose
shall be
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at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 2.9 List of Stockholders Entitled To Vote. The Secretary shall
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prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, 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 list 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 stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.10 Action by Consent Of Stockholders. Unless prohibited by law
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or the rules and regulations of any national securities exchange on which
securities of the Corporation are listed, action required to be taken or which
may be taken at any annual or special meeting of stockholders of the Corporation
may be taken without a meeting, and stockholders shall have the power to consent
in writing, without a meeting, to the taking of any action.
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ARTICLE III
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Board of Directors
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Section 3.1 Number; Qualifications. The Board of Directors shall consist
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of up to the number of directors provided for in the Corporation's Certificate
of Incorporation. At the time of nomination, a Director must own not less than
500 shares of common stock in the Corporation.
Section 3.2 Election; Resignation; Removal; Vacancies. At each annual
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meeting of stockholders, the stockholders shall elect Directors to replace those
Directors whose terms then expire. Any Director may resign at any time upon
written notice to the Corporation. Stockholders may remove Directors only for
cause. Any vacancy occurring in the Board of Directors for any cause may be
filled only by the Board of Directors, acting by vote of a majority of the
Directors then in office, although less than quorum. Each Director so elected
shall hold office until the expiration of the term of office of the Director
whom he has replaced.
Section 3.3 Notice Of Nomination Of Directors. Nominations for the
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election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Notice of
nominations which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board. Nominations by a shareholder shall be made by
notice in writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation and received in the form
required by these By-laws not less than ninety days prior to the anniversary of
the prior year's annual meeting of stockholders or not less than seven days
following the day on which notice of any special meeting has been mailed to
stockholders calling for the election of directors. Each such notice shall set
forth (i) the name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal occupation or
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employment of each such nominee for the past five years and (iii) evidence of
such nominee's qualification under Section 3.1 to these By-laws. The Chairman of
the meeting may, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3.4 Non-Discrimination Statement. Consistent with the
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Corporation's equal employment opportunity policy, nominations for the election
of directors shall be made by the Board of Directors and accepted from
stockholders in a manner consistent with these By-Laws and without regard to the
nominee's race, color, ethnicity, religion, sex, age, national origin, veteran
status, handicap or disability.
Section 3.5 Regular Meetings. Regular meetings of the Board of Directors
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may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine, and if so
determined notices thereof need not be given.
Section 3.6 Special Meetings. Special meetings of the Board of Directors
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may be held at any time or place within or without the State of Delaware
whenever called by the Chairman of the Board of Directors, the Chairman of the
Executive Committee, or by the President. Reasonable notice thereof shall be
given by the person calling the meeting, not later than the second day before
the date of the special meeting.
Section 3.7 Telephonic Meetings Permitted. Members of the Board of
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Directors, or any committee designated by the Board, may participate in any
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this by-
law shall constitute presence in person at such meeting. No electronic
recording or stenographic
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transcription of any meeting of the Board or any committee shall be permitted
without the consent of a majority of the Board or committee members present at
the meeting and no recording or transcription made in violation of these By-laws
shall be disclosed to any third person, admissible in any proceeding or used in
any fashion.
Section 3.8 Quorum; Vote Required For Action; Informal Action. At all
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meetings of the Board of Directors a majority of the whole Board shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation or these by-laws otherwise provide, 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. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board or
committee.
Section 3.9 Organization. Meetings of the Board of Directors shall be
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presided over by the Chairman of the Board, if any, or in his absence by the
President, or in his absence by the Chairman of the Executive Committee, if any,
or in his absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act
as a secretary of the meeting, but in his absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section 3.10 Compensation Of Directors. The Directors and members of
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standing committees shall receive such fees or salaries as fixed by resolution
of the Executive Committee and in addition will receive expenses in connection
with attendance or participation in each regular or
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special meeting.
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ARTICLE IV
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Committees
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Section 4.1 Committees. The Board of Directors may, by resolution passed
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by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
power or authority in reference to amending the certificate of incorporation of
the Corporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange or all or substantially all of
the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending these
by-laws. The Board of Directors shall, at the annual organization meeting
thereof, elect an Executive Committee which shall consist of not more than three
members, all of whom shall be members of the Board of Directors. The Executive
Committee shall have and may exercise all of the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation to the fullest extent permitted by law (as presently allowed
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under Section 141 (c) to the Delaware General Corporation Law and as may be
allowed in the future pursuant to amendments or revisions to applicable law).
Any Director may be removed from any committee of the Board with or without
cause by the affirmative vote of a majority of the entire Board of Directors.
Section 4.2 Committee Rules. Unless the Board of Directors otherwise
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provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these by-laws.
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ARTICLE V
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Officers
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Section 5.1 Executive Officers; Election; Qualifications; Term of Office;
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Resignation; Removal; Vacancies. The officers of the Corporation shall consist
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of a President, Vice Presidents, Secretary, Assistant Secretaries, Treasurer,
Assistant Treasurers, General Counsel, and such other officers as may from time
to time be elected or appointed by the Board of Directors. Any officer may
resign at any time upon written notice to the Corporation. The Board of
Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled for the unexpired portion of the
term by the Board of Directors at any regular or special meeting. In the
absence of any officer, the Board of Directors may delegate his power and duties
to any other officer or to any director for the time being.
Section 5.2 Duties Of The Chairman Of The Board. The Chairman of the
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Board shall preside at all meetings of the shareholders and the Board, shall
have general and active management of the business of the Corporation and shall
perform such duties as the Board of Directors may prescribe. The Chairman of the
Board shall not be deemed an executive officer of the Corporation if he is a
non-employee director and shall otherwise be an executive officer of the
Corporation only if specifically designated as such by the Board of Directors at
the time of his election or appointment.
Section 5.3 President. The President shall be the Chief Executive Officer
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of the Corporation, may execute in the name of the Corporation all contracts and
agreements authorized by the Board or the Executive Committee. He may sign
certificates of stock; he shall have general
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supervision and direction of all the other officers of the Corporation; he shall
submit a complete report of the operations and condition of the Corporation for
the year to the Chairman and to the directors at their regular meetings, and
from time to time shall report to the directors all matters which the interest
of the Corporation may require to be brought to their notice. He shall have the
general powers and duties usually vested in the office of a president of a
corporation.
Section 5.4 Vice President - Finance. The Vice President - Finance shall
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be the Chief Accounting and Chief Financial Officer of the Corporation and shall
be responsible to the Board of Directors, the Executive Committee and the
President for all financial control and internal audit of the Corporation and
its subsidiaries. He shall perform such other duties as may be assigned to him
by the Board of Directors, the Executive Committee or the President.
Section 5.5 Vice Presidents. The Vice Presidents elected or appointed by
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the Board of Directors shall perform such duties and exercise such powers as may
be assigned to them from time to time by the Board of Directors, the Executive
Committee or the President. In the absence or disability of the President, the
Vice President designated by the Board of Directors, the Executive Committee, or
the President shall perform the duties and exercise the powers of the President.
A Vice President may sign and execute contracts and other obligations pertaining
to the regular course of his duties.
Section 5.6 Secretary. The Secretary shall be ex-officio Secretary of the
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Board of Directors and of the standing committees. He shall attend all sessions
of the Board, act as clerk thereof, record all votes and keep the minutes of all
proceedings in a book to be kept for that purpose. He shall perform like duties
for the standing committees when required. He shall see that the proper notices
are given of all meetings of stockholders and directors, and perform such other
duties as may be prescribed from time to time by the Board of Directors, the
Executive Committee, the Chairman
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or the President.
Section 5.7 Treasurer. The Treasurer shall keep full and accurate
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accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation, in such depositories as may be designated by the
Board of Directors or Executive Committee. He shall disburse the funds of the
Corporation as may be ordered by the Board, the Executive Committee or the
President, taking proper vouchers therefor, and shall render to the President
and the Executive Committee and Directors, whenever they may require it, an
account of all his transactions as Treasurer, and of the financial condition of
the Corporation, and at the annual organization meeting of the Board a like
report for the preceding year.
Section 5.8 General Counsel. The General Counsel shall be the legal
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adviser of the Corporation and shall perform such services as the Chairman,
President, Board of Directors or Executive Committee may require.
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ARTICLE VI
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Stock
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Section 6.1 Certificates. Every holder of stock shall be entitled to have
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a certificate signed by or in the name of the Corporation by the Chairman of the
Board of Directors, if any, or the President of the Corporation, certifying the
number of shares owned by him in the Corporation. Any of or all the signatures
on the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
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 issue.
Section 6.2 Lost, Stolen Or Destroyed Stock Certificates; Issuance Of New
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Certificates. The Corporation may issue a new certificate of stock in the place
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of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate.
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ARTICLE VII
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Indemnification
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Section 7.1. General. The Company shall indemnify, and advance Expenses
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(as hereinafter defined) to, Indemnitee (as hereinafter defined) to the fullest
extent permitted by applicable law in effect on the adoption of these By-Laws,
and to such greater extent as applicable law may thereafter from time to time
permit. The rights of Indemnitee provided under the preceding sentence shall
include, but shall not be limited to, the rights set forth in the other Sections
of this Article.
Section 7.2. Proceedings Other Than Proceedings By Or In The Right Of The
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Company. Indemnitee shall be entitled to the indemnification rights provided in
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this Section 7.2 if, by reason of his Corporate Status (as hereinafter defined),
he is, or is threatened to be made, a party to any threatened, pending, or
completed Proceeding (as hereinafter defined), other than a Proceeding by or in
the right of the Company. Pursuant to this Section 7.2, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, 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 Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 7.3. Proceedings By Or In The Right Of The Company. Indemnitee
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shall be entitled to the indemnification rights provided in this Section 7.3 to
the fullest extent permitted by law if, by reason of his Corporate Status, he
is, or is threatened to be made, a party to any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a judgment
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in its favor. Pursuant to this Section 7.3, Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Company.
Section 7.4. Indemnification For Expenses Of A Party Who Is Wholly Or
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Partly Successful. Notwithstanding any other provision of this Article, to the
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extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 7.5. Indemnification For Expenses Of A Witness. Notwithstanding
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any other provision of this Article, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 7.6. Advancement Of Expenses. The Company shall advance all
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reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within twenty days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such proceeding.
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Such statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified against such
Expenses.
Section 7.7. Procedure For Determination Of Entitlement To
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Indemnification.
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(a) To obtain indemnification under this Article, Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The determination of Indemnitee's entitlement to
indemnification shall be made not later than 60 days after receipt by the
Company of the written request for indemnification. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested indemnification.
(b) Indemnitee's entitlement to indemnification under any of Sections
7.2, 7.3 or 7.4 of this Article shall be determined in the specific case: (i) by
the Board of Directors by a majority vote of a quorum of the Board consisting of
Disinterested Directors (as hereinafter defined); or (ii) by Independent Counsel
(as hereinafter defined), in a written opinion, if (A) a Change of Control (as
hereinafter defined) shall have occurred and Indemnitee so requests, or (B) if a
quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs; or (iii) by the stockholders of the Company; or (iv) as provided in
Section 7.8 of this Article.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 7.7(b) of this Article,
the Independent Counsel shall be
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selected as provided in this Section 7.7(c). If a Change of Control shall not
have occurred, the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Indemnitee advising him
of the identity of the Independent Counsel so selected. If a Change of Control
shall have occurred, and if so requested by Indemnitee in his written request
for indemnification, the Independent Counsel shall be selected by Indemnitee,
and Indemnitee shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected. In either event, Indemnitee or
the Company, as the case may be, may, within 7 days after such written notice of
selection shall have been given, deliver to the Company or to Indemnitee, as the
case may be, a written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section 7.13 of
this Article, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is made, the Independent
Counsel so selected shall be disqualified from acting as such. If, within 20
days after submission by Indemnitee of a written request for indemnification
pursuant to Section 7.7(a) hereof, no Independent Counsel shall have been
selected, or if selected shall have been objected to, in accordance with this
Section 7.7(c), either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware for the appointment as Independent Counsel of
a person selected by the Court or by such other person as the Court shall
designate, and the person so appointed shall act as Independent Counsel under
Section 7.7(b) hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in acting
pursuant to Section 7.7(b) hereof, and the Company shall pay all reasonable fees
and expenses incident to the procedures of this Section 7.7(c), regardless of
the manner in which such Independent Counsel was selected or appointed.
Section 7.8. Presumptions And Effect Of Certain Proceedings. If a Change
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of Control
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shall have occurred, Indemnitee shall be presumed (except as otherwise expressly
provided in this Article) to be entitled to indemnification under this Article
upon submission of a request for indemnification in accordance with Section
7.7(a) of this Article, and thereafter the Company shall have the burden of
proof to overcome that presumption in reaching a determination contrary to that
presumption. Whether or not a Change of Control shall have occurred, if the
person or persons empowered under Section 7.7 of this Article to determine
entitlement to indemnification shall not have made a determination within 60
days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitee shall be entitled to such indemnification unless (i)
Indemnitee misrepresented or failed to disclose a material fact in making the
request for indemnification, or (ii) such indemnification is prohibited by law.
The termination of any Proceeding described in any of Sections 7.2, 7.3, or 7.4
of this Article, or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
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shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee 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 Company
or, with respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that his conduct was unlawful.
Section 7.9. Remedies Of Indemnitee.
----------- ----------------------
(a) In the event that (i) a determination is made pursuant to Section
7.7 of this Article that Indemnitee is not entitled to indemnification under
this Article, (ii) advancement of Expenses is not timely made pursuant to
Section 7.6 of this Article, or (iii) payment of indemnification is not made
within five (5) days after a determination of entitlement to indemnification has
been made or deemed to have been made pursuant to Sections 7.7 or 7.8 of this
20
Article, Indemnitee shall be entitled to an adjudication in an appropriate court
of the State of Delaware, or in any other court of competent jurisdiction, of
his entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. The Company shall not oppose Indemnitee's right to seek
any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 7.7 of this Article that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 7.9 shall be conducted in all respects as a de novo trial, or
-- ----
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. If a Change of Control shall have occurred, in any
judicial proceeding or arbitration commenced pursuant to this Section 7.9 the
Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to Sections 7.7 or 7.8 of this Article that Indemnitee is entitled
to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 7.9,
unless (i) Indemnitee misrepresented or failed to disclose a material fact in
making the request for indemnification, or (ii) such indemnification is
prohibited by law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 7.9 that the
procedures and presumptions of this Article are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article.
(e) In the event that Indemnitee, pursuant to this Section 7.9, seeks
a judicial
21
adjudication of, or an award in arbitration to enforce his rights under, or to
recover damages for breach of, this Article, Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any
and all expenses (of the types described in the definition of Expenses in
Section 7.13 of this Article) actually and reasonably incurred by him in such
judicial adjudication or arbitration, but only if he prevails therein. If it
shall be determined in said judicial adjudication or arbitration that Indemnitee
is entitled to receive part but not all of the indemnification or advancement of
Expenses sought, the expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be appropriately prorated.
Section 7.10. Non-Exclusivity And Survival Of Rights. The rights of
------------ --------------------------------------
indemnification and to receive advancement of Expenses as provided by this
Article shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Certificate of
Incorporation, the By-Laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. Notwithstanding any amendment,
alteration or repeal of any provision of this Article, Indemnitee shall, unless
otherwise prohibited by law, have the rights of indemnification and to receive
advancement of Expenses as provided by this Article in respect of any action
taken or omitted by Indemnitee in his Corporate Status and in respect of any
claim asserted in respect thereof at any time when such provision of this
Article was in effect. The provisions of this Article shall continue as to an
Indemnitee whose Corporate Status has ceased and shall inure to the benefit of
his heirs, executors and administrators.
Section 7.11. Severability. If any provision or provisions of this
------------ ------------
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such
22
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 7.12. Certain Persons Not Entitled To Indemnification Or
------------ --------------------------------------------------
Advancement Of Expenses. Notwithstanding any other provision of this Article,
-----------------------
no person shall be entitled to indemnification or advancement of Expenses under
this Article with respect to any Proceeding, or any claim therein, brought or
made by him against the Company.
Section 7.13. Definitions. For purposes of this Article:
------------ -----------
(a) "Change in Control" means a change in control of the Company of a
nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of 1934
(the "Act"), whether or not the Company is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) is or becomes the "beneficial
owner") (as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined voting power
of the Company's then outstanding securities without the prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (ii) the Company is a
party to a merger, consolidation, sale of assets or other
23
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who is or was
a director, officer, employee, agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the Company.
(c) "Disinterested Director" means a director of the Company who is
not and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding.
(e) "Indemnitee" includes any person who is, or is threatened to be
made, a witness in or a party to any Proceeding as described in Sections 7.2,
7.3 or 7.4 of this Article by reason of his Corporate Status.
(f) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither presently
is, nor in the past five (5) years has
24
been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee's rights under this Article.
(g) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 7.9 of this Article to enforce
his rights under this Article.
Section 7.14. Miscellaneous. Use of the masculine pronoun shall be deemed
------------ -------------
to include usage of the feminine pronoun where appropriate.
25
ARTICLE VIII
------------
Miscellaneous
-------------
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be
----------- -----------
determined by resolution of the Board of Directors.
Section 8.2 Waiver Of Notice Of Meetings Of Stockholders, Directors, And
----------- ------------------------------------------------------------
Committees. Any written waiver of notice, signed by the person entitled to
----------
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person 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. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 8.3 Interested Directors; Quorum. No contract or transaction
----------- ----------------------------
between the Corporation and one or more of its directors or officers, 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
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted
for such purpose, if: (1) 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 the committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested
26
directors be less than a quorum; or (2) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. 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 the contract or transaction.
Section 8.4 Attorneys' Fees in Shareholder Actions. No stockholder shall
----------- --------------------------------------
bring any action against the Corporation or any officer or director of the
Corporation (in their respective capacities), unless such stockholder and any
person controlling such stockholder shall have entered an agreement with the
Corporation, reasonably satisfactory to it, requiring the losing party to pay to
the prevailing party the attorneys' fees and expenses incurred by the prevailing
party in such action. As used in this Section 8.4, the term "person" shall have
the meaning given it in Section 13(d) of the Securities Exchange Act of 1934
("Exchange Act"), and the term "controlling" shall have the meaning given it in
Rule 12b-2 under the Exchange Act. This provision shall not apply to any action
or claim arising before this provision shall have become effective.
Section 8.5 Form Of Records. Any records maintained by the Corporation in
----------- ---------------
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, tape, disc,
photographs, or any other information storage device, provided that the records
so kept can be converted into clearly legible form within a reasonable time.
The Corporation shall so convert any records so kept upon the request of any
person entitled to inspect the same.
Section 8.6 Amendment Of By-Laws. The Board of Directors of the
----------- --------------------
Corporation is
27
expressly authorized to adopt, amend or repeal the by-laws of the Corporation by
a vote of a majority of the entire Board. The stockholders may make, alter or
repeal any by-law whether or not adopted by them, provided however, that any
such additional by-laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of 75% or more of the voting power of the
Corporation entitled to vote generally in the election of directors, unless such
additional by-laws, alterations or repeal shall have been recommended to the
stockholders for adoption by a majority of the Board of Directors, in which
event such additional by-laws, alterations or repeal may be adopted by the
affirmative vote of the holders of a majority voting power of the Corporation
entitled to vote generally in the election of directors.
Section 8.7 Restrictive Gaming Legend. All certificates issued for
----------- -------------------------
Shares of the $.10 par value Common Stock of the Corporation shall bear the
following legend:
"Any and all shares of Common Stock of the Corporation are held
subject to the condition that if (a) any regulatory authority should
request, determine or otherwise advise that the holder or owner is
disqualified, or unsuitable, must qualify for or obtain a license, or
must submit an application and satisfy a review process, including
background checks, in order for the Corporation or any subsidiary to
obtain or retain a license or a relicense, or otherwise avoid
significant penalties or business disadvantage, and (b) such holder or
owner shall fail to submit to qualification within fifteen (15) days
following such request, determination or advice, or fail to be found
qualified or suitable, then (c) such holder or owner, at the request
of the Corporation or the appropriate regulatory authority, shall
promptly dispose of such holder's or owner's interest in the
Corporation's Common Stock and shall be subject to any order of such
regulatory body limiting such holder's or owner's rights pending such
28
disposition. Without limiting the foregoing, any holder or owner that
intends to acquire, directly or indirectly, ten percent (10%) or more
of the outstanding common stock of the Corporation (regardless of
class or series) shall first notify the Corporation and obtain prior
written approval from the Delaware State Lottery Office. Since money
damages are inadequate to protect the Corporation, it shall be
entitled to injunctive relief to enforce the foregoing provision."
Section 8.8 Restrictions on Transfer of Class A Common Stock.
----------- ------------------------------------------------
(a) Restriction. Shares of the Company's Class A Common Stock (the
-----------
"Shares") may be sold, transferred or disposed of only in accordance with the
----
following:
(i) Shares may be sold or transferred to any other holder of
Shares, provided that such holder has not acquired Shares in
contravention of these Bylaws; or
(ii) Shares may be sold, transferred or pass by intestacy, will
or inheritance to:
(A) one or more members of the immediate family of a holder
of Shares, provided that such holder has not acquired Shares in
contravention of these Bylaws;
(B) a corporation all of the shares of which are owned by
holders of Shares (or one or more members of the immediate family
of a holder of Shares), provided that no such holder has acquired
Shares in contravention of these Bylaws;
29
(C) a trust all of the beneficial interests of which are
owned by holders of Shares (or one or more members of the
immediate family of a holder of Shares), provided that no such
holder has acquired Shares in contravention of these Bylaws; or
(D) a general or limited partnership all of the partnership
interests in which are owned by holders of Shares (or one or more
members of the immediate family of a holder of Shares), provided
that no such holder has acquired Shares in contravention of these
Bylaws.
(b) Family Member Defined. For purposes of clause (a)(ii) above,
---------------------
"members of the immediate family" shall be limited to any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
and shall include adoptive relationships.
(c) Evidence of Compliance. Prior to any sale, transfer or
----------------------
disposition of Shares, the holder may be required, at the option of the Company,
to furnish appropriate evidence of compliance with these Bylaws, including but
not limited to an opinion of counsel.
(d) Conversion. Shares may be converted to shares of the Company's
----------
Common Stock and sold, transferred or disposed of without regard to the
limitations set forth in clause (a) above.
(e) Pledge. The bona fide pledge of Shares as collateral security
------
for indebtedness to the pledgee shall not be deemed to violate clause (a) above,
provided that the pledgee provides to
30
the Company a written undertaking not to sell, transfer or dispose of the Shares
in violation of these Bylaws.
(f) Legend. All certificates evidencing the Shares (and replacement
------
certificates issued in their stead) shall be inscribed with the following legend
(in addition to any other legends required hereunder or under federal or state
securities laws):
"The Shares of Class A Common Stock represented by
this certificate may be sold, transferred or otherwise
disposed of only in accordance with the terms and
conditions set forth in the Company's Bylaws, which
terms and conditions restrict, and in some instances
prohibit, the transfer or other disposition of such
Shares and which terms and conditions may only be
amended by shareholders owning 75% or more of the
outstanding shares of Class A Common Stock. The terms
and conditions set forth in the Company's Bylaws are
incorporated herein by reference and copies thereof are
available for inspection or will be mailed by the
Company to any holder without charge within five days
after the Company's receipt of a written request
therefor."
(g) Vote Required to Amend. This Section 8.7 may only be amended by
----------------------
shareholders owning 75% or more of the outstanding Shares.
(h) Injunctive Relief. Since money damages would be inadequate, the
-----------------
Company or any holder of Shares shall be entitled to injunctive
relief to enforce this Section 8.7.
31
