SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
----------------------
COLONIAL DOWNS HOLDINGS, INC.
---------------------------------
(Exact Name of Registrant as Specified in its charter)
Virginia 54-1826807
-------------------------------------- ------------------------------
(State of incorporation or organization) (IRS Employer Identification No.)
3610 North Courthouse Road
Providence Forge, Virginia 23140
-------------------------------------- ------------------------------
(Address of principal executive offices) (including zip code)
If this Form relates to the registration If this Form relates to the
of a class of debt securities and is registration of a class of debt
effective upon filing pursuant to General securities and is to become
Instruction A(c)(i) please check effective simultaneously with the
the following box. |_| effectiveness of a concurrent
registration statement under the
Securities Act of 1933 pursuant
to General Instruction A(c)(2)
please check the following box.
|_|
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on
to be so Registered which Each Class is to be Registered
------------------- ------------------------------------
Class A Common Stock, Nasdaq National Market
$.01 par value per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
----------------------------------------------
(Title of Class)
<PAGE>
Form 8-A
Page 2
Item 1. Description of Registrant's Securities to be Registered.
See "Description of Capital Stock" on pages 44 to 46 of the form
of preliminary prospectus included in the Registrant's Amendment No. 3 to
Registration Statement on Form S-1, dated March 10, 1997 (Registration No.
333-18295) which is hereby incorporated by reference.
Item 2. Exhibits.
1.0 Form of Stock Certificate.
2.0 Articles of Incorporation.
3.0 Bylaws.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
COLONIAL DOWNS HOLDINGS, INC.
Date: March 7, 1997 By: /s/ Michael D. Salmon
---------------------------
Controller
3
NUMBER SHARES
A
COLONIAL DOWNS HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA
CLASS A COMMON STOCK
CUSIP 19564H 10 0
SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS OR OTHER LEGENDS
This
Certifies
That
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE CLASS A COMMON STOCK, PAR VALUE
$.01 PER SHARE, OF
COLONIAL DOWNS HOLDINGS, INC.
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed or assigned.
This Certificate and the shares represented hereby are subject to the Laws
of the Commonwealth of Virginia, and to the provisions of the Amended and
Restated Articles of Incorporation and Amended and Restated By-Laws of the
Corporation as stated or hereafter amended. This Certificate is not valid
until countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
[In the printed version the Corporate Seal of Colonial Downs Holdings, Inc.
appears here.]
Dated:
SECRETARY CHAIRMAN
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
COLONIAL DOWNS HOLDING, INC.
A FULL STATEMENT OF THE DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND
LIMITATIONS APPLICABLE TO EACH CLASS OF SHARES AND THE VARIATIONS IN RIGHTS.
PREFERENCES AND LIMITATIONS DETERMINED FOR EACH CLASS (AND THE AUTHORITY OF THE
BOARD OF DIRECTORS TO DETERMINE VARIATIONS OF FUTURE CLASSES OF SHARES THAT THE
CORPORATION IS AUTHORIZED TO ISSUE) WILL BE FURNISHED, WITHOUT CHARGE, TO ANY
SHAREHOLDER UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be constructed as though they were written out in full
according to applicable laws and regulations:
TEN COM as tenants in common UNIF GIFT MIN ACT *.......Custodian.....
(Cust) (Minor)
TEN ENT as tenants by the entireties under Uniform Transfer to Minors
JT TEN as joint tenants with right of
survivorship and not as tenants Act.............................
in common (State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED_______________________HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
-------------------------------------------------
Please Print or Typewrite Name and Address,
including Postal Zip Code Assignee
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- --------------------------------------------------------------------------shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint---------------------------------------------
- ----------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated ---------------------------- -----------------------------------------
NOTICE: THE SIGNATURE(S) SHOULD BE
GUARANTEED AND MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THIS
In Presence of CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
- ----------------------------------
Exhibit 2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COLONIAL DOWNS HOLDINGS, INC.
By unanimous consent in writing dated the 10th day of February, 1997,
the Board of Directors of Colonial Downs Holdings, Inc. (the "Corporation"),
found that the following proposed Amendment to and Restatement of the Articles
of Incorporation of the Corporation was in the best interests of the
Corporation, and directed that it be submitted to a vote of the shareholders.
The Amended and Restated Articles of Incorporation, as proposed by the Board of
Directors (the "Board") and set forth below, were unanimously approved and
adopted by the shareholders of the Corporation by consent in writing dated the
10th day of February, 1997.
A. Corporate Name. The name of the corporation is Colonial Downs
Holdings, Inc. (the "Corporation").
B. Purposes and Powers. The purpose for which the Corporation is formed
is to engage in any lawful business. In addition, the Corporation shall have the
same powers as an individual to do all things necessary or convenient to carry
out its business and affairs.
C. Authorized Stock. The aggregate number of shares which the
Corporation shall have authority to issue, and the par value per share, are as
follows:
Class Par Number
and Series Value of Shares
---------- ----- ---------
Class A Common $.01 12,000,000
Class B Common $.01 3,000,000
Preferred $.01 2,000,000
No holders of any class or series of stock shall have the preemptive
right to acquire unissued shares of any class or series of stock of the
Corporation. The Class A Common Stock and the Class B Common Stock are
collectively referred to as the "Common Stock."
D. Class A Common Stock.
Voting Rights. Each holder of the Class A Common Stock shall
be entitled to attend all special and annual meetings of the shareholders of the
Corporation, together with the holders of all other classes of stock entitled to
attend and vote at such meetings, to vote upon any matter or thing (including,
without limitation, the election of one or more directors) properly
<PAGE>
considered and acted upon by the shareholders. Holders of the Class A Common
Stock are entitled to one vote per share.
Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary,
the holders of the Class A Common Stock, and holders of any class or series of
stock entitled to participate therewith, shall become entitled to participate in
the distribution of any assets of the Corporation remaining after the
Corporation shall have paid, or provided for payment of, all debts and
liabilities of the Corporation and after the Corporation shall have paid, or set
aside for payment to the holders of any class of stock having preference over
the Class A Common Stock in the event of dissolution, liquidation or winding up
the full preferential amounts (if any) to which they are entitled. The holders
of Class A Common Stock and Class B Common Stock shall participate equally, on a
per share basis, in any such distribution of such assets.
Dividends. Dividends may be paid on the Class A Common Stock
and on any class or series of stock entitled to participate therewith when and
as declared by the Board; provided that holders of the Class A Common Stock and
Class B Common Stock will be entitled to participate equally, on a per share
basis, in any dividend or other distribution declared or made by the Board in
respect of the Common Stock. No dividend or other distribution shall be declared
or made in respect of the Class A Common Stock unless at such time an equal (on
a per share basis) dividend or distribution is declared and made in respect of
the Class B Common Stock.
E. Class B Common Stock.
Voting Rights. Each holder of the Class B Common Stock shall
be entitled to attend all special and annual meetings of shareholders of the
Corporation, together with the holders of all other classes of stock entitled to
attend and vote at such meetings, to vote upon any matter or thing (including
without limitation, the election of one or more directors) properly considered
and acted upon by the shareholders. Holders of the Class B Common Stock are
entitled to five (5) votes per share generally, other than votes, approvals, or
other consensual rights with respect to (i) a merger, consolidation, or other
business combination of the Corporation or any of its material subsidiaries,
(ii) a sale of all or substantially all of the assets of the Corporation or any
of its material subsidiaries, or (iii) amendments to the Corporation's Articles
of Incorporation, as amended from time to time, or Bylaws, as amended from time
to time, that alter or affect the voting rights of the holders of Class B Common
Stock as to which, in each case, each holder of Class B Common Stock will be
entitled to one vote per share.
Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary,
the holders of the Class B Common Stock, and the holders of any class or series
of stock entitled to participate therewith shall become entitled to participate
in the distribution of any assets of the Corporation remaining after the
Corporation shall have paid, or provided for payment of all debts and
liabilities of the Corporation and after the Corporation shall have paid, or set
aside for payment, to the holders of any class of stock having preference over
the Class B Common Stock in the event of dissolution,
2
<PAGE>
liquidation or winding up the full preferential amounts (if any) to which they
are entitled. The holders of Class A Common Stock and Class B Common Stock shall
participate equally, on a per share basis, in any such distribution of any such
assets.
Dividends. Dividends may be paid on the Class B Common Stock,
and any class or series of stock entitled to participate therewith when and as
declared by the Board; provided that Holders of the Class A Common Stock and
Class B Common Stock will be entitled to participate equally, on a per share
basis, in any dividend or other distribution declared or made by the Board in
respect of the Common Stock. No dividend or other distribution shall be declared
or made in respect of the Class B Common Stock unless at such time an equal (on
a per share basis) dividend or distribution is declared and made in respect of
the Class A Common Stock.
Conversion into Class A Common Stock. Each holder of Class B
Common Stock may, at its option, at any time convert any or all shares of Class
B Common Stock of such holder into the same number of shares of Class A Common
Stock upon presentation of certificates evidencing such shares of Class B Common
Stock to the Corporation's stock transfer agent accompanied by a written
conversion request.
Restrictions on Transfer. The Class B Common Stock may not be
sold, assigned, pledged, hypothecated, or otherwise transferred to any person or
entity other than any of CD Entertainment Ltd., Jeffrey P. Jacobs, or members of
Mr. Jacobs' immediate family. A legend to such effect shall appear on each
certificate evidencing shares of Class B Common Stock.
F. Preferred Stock. The Board of Directors is authorized to have the
Corporation issue one or more series of shares of Preferred Stock, and to
provide for the designation, preferences, limitations and relative rights
thereof. The Board of Directors can fix and determine, among other things: (i)
whether the shares of such class or series shall have voting rights, in addition
to any voting rights provided by law, and if so, the terms of such voting
rights; (ii) the rate or rates (which may be fixed or variable) at which
dividends, if any, are payable on such series; (iii) whether the shares of such
series shall be subject to redemption or repurchase by the Corporation; (iv) the
amount or amounts payable upon shares of such series upon and rights of the
holders of such series in, the voluntary or involuntary liquidation, dissolution
or winding up, or any distribution of the assets of the Corporation, whether the
shares of such series shall be subject to the operation of a retirement or
sinking fund, and if so, the extent to and manner in which any such retirement
or sinking fund shall be applied to the repurchase or redemption of the shares
of such series for retirement or other corporate purposes and the terms and
provisions relative to the operation thereof; and (v) whether the shares of such
series shall be convertible into, or exchangeable for, shares of stock of any
other securities (including Common Stock) and, if so, the price or prices or the
rate or rates of conversion or exchange.
G. Certain Charter and Statutory Provisions. The number of Directors
constituting the Board of Directors shall be not less than four nor greater than
nine, as determined by resolution of the Board of Directors from time to time.
The terms of the Directors shall be staggered by dividing the total number of
Directors into three classes, as nearly equal in
3
<PAGE>
number as the total number of Directors constituting the Board then permits,
with any Director or Directors in excess of the number divisible by three being
assigned to Class 3 and Class 2, as the case may be. The terms of Directors in
Class 1 shall expire at the first annual shareholders' meeting after their
election (or until their respective successors are duly elected and qualified or
until their earliest death, resignation, or removal); the terms of the Directors
in Class 2 shall expire at the second annual shareholders' meeting after their
election (or until their respective successors are duly elected and qualified or
until their earliest death, resignation, or removal); and the terms of the
Directors in Class 3 shall expire at the third annual shareholders' meeting
after their election (or until their respective successors are duly elected and
qualified or until their earliest death, resignation, or removal). Upon the
expiration of the initial staggered term of each director, directors shall be
chosen for a term of three years to succeed those whose terms expire.
H. Limitation on Liability. In any proceeding brought in the right of
the Corporation or by or on behalf of shareholders of the Corporation, the
damages assessed against an officer or director arising out of a single
transaction, occurrence, or course of conduct shall not exceed one dollar,
unless the officer or director engaged in willful misconduct or a knowing
violation of the criminal law or any federal or state securities law, including
without limitation, any claim of unlawful insider trading or manipulation of the
market for any security.
I. Repurchase Stock under the Virginia Horse Racing Act. The
Corporation may purchase, upon a vote of a majority of its shareholders, at fair
market value, as reasonably determined by the Board of Directors, any or the
entire interest of any shareholder who is or becomes unqualified for such
position under Section 59.1-379 of the Code of Virginia of 1950, as the same may
be amended from time to time.
J. Indemnification of Directors, Officers and Others.
1. Indemnification. The Corporation shall indemnify an
individual who entirely prevails in the defense of any proceeding to which he
was a party because he is or was a director of the Corporation against
reasonable expenses incurred by him in connection with the proceeding. The
Corporation shall also indemnify an individual made a party to a proceeding
because he is or was a director against liability incurred in the proceeding if:
(1) he conducted himself in good faith; and
(2) he believed:
(a) in the case of conduct in his official
capacity with the Corporation, that his conduct was in its best interests; and
(b) in all other cases, that his conduct was
at least not opposed to its best interests; and
(3) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
4
<PAGE>
A director's conduct with respect to an employee
benefit plan for a purpose he believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement that his conduct was at least not opposed to the best interests of
the Corporation.
The termination of a proceeding by judgment, order,
settlement, or conviction is not, of itself, determinative that the director did
not meet the standard of conduct described in this Paragraph J of these
Articles.
Notwithstanding the foregoing, the Corporation shall
not indemnify a director under this Paragraph J of these Articles:
(1) in connection with a proceeding by or in the
right of the Corporation in which the director is adjudged liable to the
Corporation; or
(2) in connection with any other proceeding charging
improper personal benefit to him, whether or not involving action in his
official capacity, in which he is adjudged liable on the basis that personal
benefit was improperly received by him.
Indemnification granted under this Paragraph J of
these Articles in connection with a proceeding by or in the right of the
Corporation is limited to reasonable expenses incurred in connection with the
proceeding. The definitions as set forth in Section 13.1-696 of the Code of
Virginia of 1950, as amended, as in effect from time to time, shall apply with
respect to this Paragraph J.
2. Advance for Expenses. The Corporation shall pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding if:
(a) the director furnishes the Corporation a written
statement of his good faith belief that he has met the standard of conduct
described in Section 1;
(b) the director furnishes the Corporation a written
undertaking, executed personally or on his behalf, to repay the advance if it is
ultimately determined that he did not meet the standard of conduct (which
undertaking shall be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to financial ability to
make repayment); and
(c) a determination is made that the facts then known
to those making the determination would not preclude indemnification under
Article 10 of the Virginia Stock Corporation Act or Section 1 hereof.
3. Determination and Authorization of Indemnification. The
Corporation shall not indemnify a director under Section 1 unless authorized in
the specific case after a determination has been made that indemnification of
the director is permissible in the circumstances
5
<PAGE>
because he has met the standard of conduct set forth in Section 1. The
determination shall be made:
(a) by the Board of Directors by a majority vote of a
quorum consisting of directors not at the time parties to the proceeding;
(b) if such a quorum cannot be obtained, by majority
vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate in such designation), consisting
solely of two or more directors not at the time parties to the proceeding;
(c) by special legal counsel:
(i) selected by the Board of
Directors or its committee in the manner prescribed
in subsection (a) or (b) above;
(ii) if such a quorum of the Board
of Directors cannot be obtained and such a committee
cannot be designated, selected by a majority vote of
the full Board of Directors, in which directors who
are parties may participate in such selection; or
(d) by the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to the proceeding may
not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (c)
of this Section 3 to select counsel.
If a majority of the directors of the Corporation has changed after the
date of the alleged conduct giving rise to a claim for indemnification, the
determination that indemnification is permissible and the authorization of
indemnification and evaluation as to the reasonableness of expenses in a
specific case shall, at the option of the person claiming indemnification, be
made by special legal counsel agreed upon by the Board of Directors and such
person.
4. Indemnification of Officers, Employees, Agents and Others.
Each officer and employee of the Corporation shall be entitled to
indemnification and advance expenses to the same extent as a director.
The Corporation may, to a lesser extent or to the same extent that the
Corporation is required to provide indemnification and make advances for
expenses to its directors, provide indemnification and make advances and
reimbursements for expenses to its agents, the directors, officers, employees
and agents of its subsidiaries and predecessor entities, and any person
6
<PAGE>
serving any other legal entity in any capacity at the request of the
Corporation, and may contract in advance to do so. The determination that
indemnification under this paragraph is permissible, the authorization of such
indemnification and the evaluation as to the reasonableness of expenses in a
specific case shall be made as authorized from time to time by general or
specific action of the Board of Directors, which action may be taken before or
after a claim for indemnification is made, or as otherwise provided by law.
5. Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is or was a director, officer, employee
or agent of the Corporation, or who, while a director, officer, employee or
agent of the Corporation, is or was serving at the request of the Corporation as
a director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, against liability asserted against or incurred by him in
that capacity or arising from his status as a director, officer, employee or
agent, whether or not the Corporation would have power to indemnify him against
the same liability under Section 1.
6. Application. Indemnity hereunder shall continue as to a
person who has ceased to have the capacity referred to above and shall inure to
the benefit of the heirs, executors and administrators of such a person.
DATED: February 27, 1997
Jeffrey P. Jacobs, Chairman and CEO
7
Exhibit 3
COLONIAL DOWNS HOLDINGS, INC.
AMENDED AND RESTATED BYLAWS
******************************
ARTICLE I
OFFICES
1. Principal Office. The principal office of the corporation shall be
in the County of New Kent, Commonwealth of Virginia, but the corporation may
conduct its business or open branch offices within or without the Commonwealth
as the Board of Directors deems advisable.
ARTICLE II
SHAREHOLDERS
2. Place of Meeting. Meetings of the shareholders shall be held at the
principal office of the corporation or at such other place, within or without
the Commonwealth of Virginia, as may be designated by the Board of Directors and
set forth in the notice of the meeting.
3. Annual Meeting. Commencing with the year 1998, the annual meeting of
the shareholders of the corporation shall be held on or about the fourth day in
May of each year (and if such date is a legal holiday, on the next business
day), or such other date as the Board of Directors may resolve, for the purpose
of electing a Board of Directors and transacting such other business as may
properly come before the meeting.
4. Special Meetings. Special meetings of the shareholders may be called
by the Board of Directors, the Chairman of the Board of Directors, the
President, the Secretary or, in the case the corporation has thirty-five or
fewer shareholders, if the holders of at least twenty percent (20%) of all votes
entitled to be cast on any issue proposed to be considered at the meeting sign,
date and deliver to the corporation's Secretary one or more written demands for
such a meeting describing the purpose or purposes for which the meeting is to be
held.
5. Action without Meeting. Action required or permitted to be taken by
the Virginia Stock Corporation Act (the "Act") at a shareholders' meeting may be
taken without a meeting and without action by the Board of Directors if the
action is taken by all the shareholders entitled to vote on the action. The
action shall be evidenced by one or more written consents describing the action
taken, signed by all the shareholders entitled to vote on the action and
delivered to the Secretary of the corporation for inclusion in the minutes or
filing with the corporate records. Any action taken by unanimous written consent
shall be effective according to its terms when all consents are in possession of
the corporation. A shareholder may withdraw
8
<PAGE>
his consent only by delivering a written notice of withdrawal to the corporation
prior to the time that all consents are in the possession of the corporation.
Action taken under this Section 5 of these bylaws is effective as of the date
specified in the consent provided the consent states the date of execution by
each shareholder. A consent signed under this Section 5 of these bylaws has the
effect of a unanimous vote of voting shareholders and may be described as such
in any document filed with the Virginia State Corporation Commission under the
Act.
If the Act or these bylaws requires notice of proposed action
to be given to nonvoting shareholders, if any, and the action is to be taken by
unanimous consent of the voting shareholders written notice of the proposed
action at least ten (10) days before the action is taken. The notice shall
contain or be accompanied by the same material that would have been required to
be sent to nonvoting shareholders in a notice of meeting at which the proposed
action would have been submitted to the shareholders for action.
6. Notice of Meeting. The corporation shall notify shareholders of the
date, time and place of each annual and special shareholders' meeting. Such
notice shall be given no less than ten (10) nor more than sixty (60) days before
the meeting date except that notice of a shareholders' meeting to act on an
amendment of the Articles of Incorporation, a plan of merger or share exchange,
a proposed sale of all or substantially all of the assets of the corporation,
otherwise than in the usual and regular course of business, or the dissolution
of the corporation shall be given not less than twenty-five (25) nor more than
sixty (60) days before the meeting date, which notice shall be accompanied by a
copy of the proposed amendment, plan of merger, share exchange or dissolution or
agreement pursuant to which the proposed sale will be effected. The corporation
is required to give notice only to shareholders entitled to vote at the meeting
and notice of an annual meeting need not state the purpose or purposes for which
the meeting is called. Notice of a special meeting, however, shall state the
purpose or purposes for which the meeting is called.
If an annual or special meeting is adjourned to a different
date, time or place, notice need not be given if the new date, time or place is
announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or shall be fixed under Section 8 of these bylaws, however,
notice of the adjourned meeting shall be given under this Section 6 of these
bylaws to persons who are shareholders as of the new record date.
Notwithstanding the foregoing, no notice of a shareholders'
meeting need be given to a shareholder if (i) an annual report and proxy
statements for two (2) consecutive annual meetings of shareholders or (ii) all,
and at least two (2), checks in payment of dividends or interest on securities
during a twelve (12) month period, have been sent by first-class United States
mail, addressed to the shareholder at his address as it appears on the stock
transfer books of the corporation, and were returned undeliverable. The
obligation of the corporation to give notice of shareholders' meetings to any
such shareholder shall be reinstated once the corporation shall have received a
new address for such shareholder for entry on its stock transfer books.
7. Waiver of Notice. A shareholder may waive any notice required by the
Act, the Articles of Incorporation or these bylaws before or after the date and
time of the meeting that is
9
<PAGE>
the subject of such notice. The waiver shall be in writing, be signed by the
shareholder entitled to the notice and be delivered to the Secretary of the
corporation for inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and
(2) waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, unless the shareholder objects to considering the matter when it
is presented.
8. Determination of Shareholders of Record. The Board of Directors may
fix in advance the record date in order to make a determination of shareholders
entitled to notice of, or to vote at, any meeting of the shareholders or any
adjournment thereof, to receive payment of any dividend or distribution, to
demand a special meeting, to take action without a meeting or to make a
determination of shareholders for any other proper purpose. A record date fixed
under this Section 8 of these bylaws may not be more than seventy (70) days
before the meeting or action requiring a determination of shareholders. If not
otherwise fixed by the Board of Directors, the record date for determining
shareholders entitled to (i) notice of and to vote at a shareholders' meeting is
the close of business on the day before the effective date of the notice to
shareholders, (ii) receive payment of any dividend or distribution, other than a
distribution involving a repurchase or acquisition of shares by the corporation,
is the date the Board of Directors authorizes the dividend or distribution,
(iii) demand a special meeting is the date the first shareholder signs the
demand and (iv) take action without a meeting is the date the first shareholder
signs the consent. A determination of shareholders entitled to notice of, or to
vote at, a shareholders' meeting is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date, which it shall do if the
meeting is adjourned to a date more than one hundred twenty (120) days after the
date fixed for the original meeting.
9. Shareholders' List for Meeting. The officer or agent having charge
of the stock transfer books of the corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, with the address of
and the number of shares held by each. The list shall be arranged by voting
group and within each voting group, if more than one, by class or series of
shares.
For a period of ten (10) days prior to the meeting, the list
of shareholders shall be kept on file at the registered office of the
corporation or at its principal office or at the office of its transfer agent or
registrar and shall be subject to inspection by any shareholder 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 for the purposes thereof. The
original share transfer books shall be prima facie
10
<PAGE>
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders. The right of the
holder of shares of the corporation whose securities are registered under the
Securities Exchange Act of 1934, as amended, to inspect such list prior to a
meeting of shareholders shall be subject to the limitations set forth in Section
13.1-771.C. of the Code of Virginia of 1950, as amended (the "Code"), and
Section 51 of these bylaws.
If the requirements of this Section 9 of these bylaws have not
been substantially complied with, the meeting shall, on the demand of any
shareholder in person or by proxy, be adjourned until the requirements are met.
Refusal or failure to prepare or make available the shareholders' list does not
affect the validity of any action taken at the meeting prior to the making of
any such demand, but any action taken by the shareholders after the making of
any such demand shall be invalid and without effect.
10. Voting Entitlement of Shares. Unless otherwise provided in these
bylaws or required under the Act, all shareholders of Common Stock, regardless
of the class of stock, will vote as a single group. Except as otherwise provided
in this Section 10 of these bylaws with respect to the election of directors and
in Section 13.1-662 of the Code, each outstanding share of Class A Common Stock
is entitled to one vote on each matter voted on at a shareholders' meeting. In
the election of directors each outstanding share of Class A Common Stock is
entitled to one vote for as many persons as there are directors to be elected at
that time and for whose election the shareholder has a right to vote. No
cumulative voting shall be permitted.
Except as otherwise provided in this Section 10 of these bylaws with
respect to the election of directors and in Section 13.1-662 of the Code or in
the Articles of Incorporation, each outstanding share of Class B Commons Stock
is entitled to five votes on each matter voted on at a shareholders' meeting,
except with respect to any vote, approval, or other consensual right with
respect to (i) a merger, consolidation, or other business combination of the
Corporation or any of its material subsidiaries, (ii) a sale of all or
substantially all of the assets of the Corporation or any of its material
subsidiaries, or (iii) amendments to the Corporation's Articles of
Incorporation, as amended from time to time, or bylaws, as amended from time to
time, that alter or affect the voting rights of the holders of Class B Common
Stock as to which, in each case, each holder of Class B Common Stock will be
entitled to one vote per share.
In the election of directors each outstanding share of Class B Common
Stock is entitled to five votes (cast as a single bloc per share) for as many
persons as there are directors to be elected at that time and for whose election
the shareholder has a right to vote. No cumulative voting shall be permitted.
11. Proxies. A shareholder may vote his shares in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for him by signing an
appointment form, either personally or by his attorney-in-fact. An appointment
of a proxy is effective when received by the Secretary or other officer or agent
authorized to tabulate votes. An appointment is valid for eleven (11) months
unless a longer period is expressly provided in the appointment form. An
appointment of a proxy is revocable by the shareholder unless the appointment is
coupled with
11
<PAGE>
an interest. An appointment made irrevocable by being coupled with an interest
is revoked when such interest is extinguished. The death or incapacity of the
shareholder appointing a proxy does not affect the right of the corporation to
accept the proxy's authority unless notice of the death or incapacity is
received by the Secretary or other officers or agent authorized to tabulate
votes before the proxy exercises his authority under the appointment. A
transferee for value of shares subject to an irrevocable appointment may revoke
the appointment if he did not know of its existence when he acquired the shares
and the existence of the irrevocable appointment was not noted conspicuously on
the certificate representing the shares.
12. Corporation's Acceptance of Votes. If the name signed on a vote,
consent, waiver or proxy appointment corresponds to the name of a shareholder,
the corporation, if acting in good faith, is entitled to accept the vote,
consent, waiver or proxy appointment and give it effect as the act of the
shareholder.
If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder, the corporation,
if acting in good faith, is nevertheless entitled to accept the vote, consent,
waiver or proxy appointment and give it effect as the act of the shareholder in
accordance with Section 13.1-665 of the Code.
The corporation is entitled to reject a vote, consent, waiver
or proxy appointment if the Secretary or other officer or agent authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
Section 13.1-665 of the Code, as may be in effect from time to
time, shall apply with respect to any matters not specifically set forth in this
Section 12.
13. Quorum and Voting Requirements for Voting Groups. Shares entitled
to vote as a separate voting group, in the case of multiple voting groups, may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless the Articles of Incorporation or the Act
provides otherwise, a majority of the votes entitled to be cast on the matter by
the voting group constitutes a quorum for action on that matter. Less than a
quorum may adjourn a meeting.
Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or shall be set for
that adjourned meeting.
If a quorum exists, action on a matter, other than the
election of directors, is approved if the votes cast favoring the action exceed
the votes cast opposing the action, unless the Articles of Incorporation or the
Act requires a greater number of affirmative votes. Directors shall be elected
by a plurality of the votes cast by the shares entitled to vote in the election
at a meeting at which a quorum is present.
12
<PAGE>
14. Action by Single and Multiple Voting Groups. If the Articles of
Incorporation or the Act provides for voting by a single voting group on a
matter, action on that matter is taken when voted upon by that voting group as
provided in Section 13 of these bylaws.
ARTICLE III
DIRECTORS
15. Number and Election. The Board of Directors shall consist of a
minimum of four (4) and a maximum of nine (9) persons as the Board may establish
by resolution from time to time. Except for the initial directors who will have
been named in the Articles of Incorporation or elected at the organizational
meeting of directors or incorporators, directors shall be elected as follows, or
at any special meeting of the shareholders called for such purpose. The terms of
the directors shall be staggered by dividing the total number of directors into
three classes, as nearly in equal in number as the total number of Directors
constituting the Board then permits, with any Director or Directors in excess of
the number divisible by three being assigned to Class 3 and Class 2, as the case
may be. The terms of Directors in Class 1 shall expire at the first annual
shareholders' meeting after their election (or until their respective successors
or duly elected and qualified or until their earlier death, resignation, or
removal); the terms of the directors in Class 2 shall expire at the second
annual shareholders' meeting after their election; and the terms of the
directors in Class 3 shall expire at the third annual shareholders' meeting
after their election (or until their respective successors or duly elected and
qualified or until their earlier death, resignation, or removal). Upon the
expiration of the initial staggered term of each director, directors shall be
chosen for a term of three years. Any Director may be removed from office at a
meeting called expressly for that purpose by the vote of shareholders holding
not less than a majority of the shares entitled to vote at an election of
Directors.
No individual shall be named or elected as a director without
his prior consent.
16. Election of Directors by Certain Classes of Shareholders. If the
Articles of Incorporation authorize dividing the stock into classes, the
Articles of Incorporation may also authorize the election of all or a specified
number of directors by the holders of one (1) or more authorized classes of
stock. Each class, or classes, of stock entitled to elect one (1) or more
directors is a separate voting group for purposes of election of directors.
17. Terms of Office. The terms of the initial directors of the
corporation expire at the first shareholders' meeting at which directors are
elected. The terms of all other directors expire as provided in Section 15
hereof. A decrease in the number of directors does not shorten an incumbent
director's term. The term of a director elected by the Board of Directors to
fill a vacancy shall be the unexpired term of the director who created the
vacancy. Despite the expiration of a director's term, he continues to serve
until his successor is elected and qualifies or until there is a decrease in the
number of directors.
18. Resignation. A director may resign at any time by delivering
written notice to the Board of Directors, the President or the Secretary. A
resignation is effective when the notice is delivered, unless the notice
specifies a later effective date. If a resignation is made effective at
13
<PAGE>
a later date, the Board of Directors may fill the pending vacancy before the
effective date, provided, however, the successor may not take office until the
effective date.
19. Removal. The shareholders may remove one (1) or more directors with
or without cause, unless the Articles of Incorporation provide that directors
may be removed only with cause. If a director is elected by a voting group of
shareholders, only the shareholders of that voting group may participate in the
vote to remove him. A director may be removed if the number of votes cast to
remove him constitutes a majority of the votes entitled to be cast at an
election of directors of the voting group or voting groups by which such
director was elected. A director may be removed by the shareholders only at a
meeting called for the purpose of removing him and the meeting notice must state
that the purpose, or one of the purposes, of the meeting is removal of the
director.
20. Vacancy. If a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of directors:
(1) the shareholders may fill the vacancy;
(2) the Board of Directors may fill the vacancy; or
(3) if the directors remaining in office constitute fewer than
a quorum of the Board, they may fill the vacancy by the affirmative vote of a
majority of directors remaining in office.
If the vacant office was held by a director elected by a
voting group of shareholders, only the holders of that voting group are entitled
to fill the vacancy if it is to be filled by the shareholders.
A vacancy that will occur at a specific later date, by reason
of a resignation effective at a later date under Section 18 of these bylaws or
otherwise, may be filled before the vacancy occurs but the new director may not
take office until the vacancy occurs.
A vacancy shall be deemed to exist whenever the number of
directors then in office is less than the maximum number permitted under these
bylaws.
21. Compensation. Directors shall not receive a stated salary for their
services, but directors may be paid a fixed sum and expenses for attendance at
any regular or special meeting of the Board of Directors or any meeting of any
committee. A director may serve or be employed by the corporation in any other
capacity and receive compensation therefor.
22. Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and place, in or out of the Commonwealth of
Virginia, as the Board of Directors may designate from time to time. A regular
meeting of the Board of Directors shall be held immediately after the annual
meeting of the shareholders. Unless changed, that regular meeting shall be held
in New Kent County, Virginia. Special meetings may be called by the
14
<PAGE>
Board of Directors, the President or the Secretary by giving reasonable notice
of the time and place thereof.
The Board of Directors may permit any or all directors to
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
23. Action Without Meeting. Action required or permitted by the Act to
be taken at a Board of Directors meeting may be taken without a meeting if the
action is taken by all members of the Board. The action shall be evidenced by
one or more written consents stating the action taken, signed by each director
either before or after the action taken, and included in the minutes or filed
with the corporate records reflecting the action taken.
Action taken under this Section 23 of these bylaws is
effective when the last director signs the consent unless the consent specifies
a different effective date, in which event the action taken is effective as of
the date specified therein, provided the consent states the date of execution by
each director. A consent signed under this Section 23 of these bylaws has the
effect of a meeting vote and may be described as such in any document.
24. Notice of Meetings. Regular meetings of the Board of Directors may
be held without notice of the date, time, place or purpose of the meeting.
Special meetings of the Board of Directors may be called by resolution of the
Board of Directors or any officer or director by giving reasonable notice of the
time and place thereof. The notice need not describe the purpose of the special
meeting.
25. Waiver of Notice. A director may waive any notice required by the
Act, the Articles of Incorporation or these bylaws before or after the date and
time stated in the notice, and such waiver shall be equivalent to such notice
having been given. Except as provided in the following paragraph, the waiver
shall be in writing, signed by the director entitled to the notice and filed
with the minutes or corporate records.
A director's attendance at or participation in a meeting
waives any required notice to him of the meeting unless the director at the
beginning of the meeting or promptly upon his arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
26. Quorum and Voting. A quorum of the Board of Directors consists of:
(1) a majority of the fixed number of directors if the
corporation has a fixed board size; or
15
<PAGE>
(2) a majority of the number of directors prescribed, or if no
number is prescribed the number in office immediately before the meeting begins,
if the corporation has a variable-range sized board.
If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the Board of Directors
unless the Articles of Incorporation require the vote of a greater number. A
director who is present at a meeting of the Board of Directors or a committee of
the Board of Directors when corporate action is taken is deemed to have assented
to the action taken unless:
(1) he objects at the beginning of the meeting, or promptly
upon his arrival, to holding it or transacting specified business at the
meeting; or
(2) he votes against, or abstains from, the action taken.
Whenever the Act requires the Board of Directors to recommend
or approve any proposed corporate act, such recommendation or approval shall not
be required if the proposed corporate act is adopted by the unanimous consent of
shareholders.
27. Committees. The Board of Directors may create one or more
committees, including an Executive Committee, and appoint members of the Board
of Directors to serve on them. Each committee may have two or more members, who
serve at the pleasure of the Board of Directors. The creation of a committee and
appointment of members to it shall be approved by the greater number of (i) a
majority of all the directors in office when the action is taken or (ii) the
number of directors required by the Articles of Incorporation or these bylaws to
take action under Section 26 of these bylaws. Sections 22 through 26 of these
bylaws, which govern meetings, action without meetings, notice and waiver of
notice and quorum and voting requirements of the Board of Directors, apply to
committees and their members as well.
To the extent specified by the Board of Directors or in the
Articles of Incorporation or these bylaws, each committee may exercise all of
the authority permitted to be exercised by the Board of Directors, except that a
committee may not:
(1) approve or recommend to shareholders action that is
required to be approved by shareholders;
(2) fill vacancies on the Board or on any of its committees;
(3) amend Articles of Incorporation pursuant to Section
13.1-706 of the Code;
(4) adopt, amend or repeal the bylaws;
(5) approve a plan of merger not requiring shareholder
approval;
16
<PAGE>
(6) authorize or approve a dividend or distribution, except
according to a general formula or method prescribed by the Board of Directors;
or
(7) 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 class or series of shares, except that the Board of
Directors may authorize a committee, or a senior executive officer of the
corporation, to do so within limits specifically prescribed by the Board of
Directors.
The creation of, delegation of authority to, or action by a
committee does not alone constitute compliance by a director with the standards
of conduct described in Section 13.1-690 of the Code and Section 28 of these
bylaws.
28. General Standards of Conduct. A director shall discharge his duties
as a director, including his duties as a member of a committee, in accordance
with his good faith business judgment of the best interests of the corporation.
A director shall not be liable for any action taken as a director, or any
failure to take any action, if he performs the duties of his office in
compliance with Section 13.1-690 of the Code.
29. Director Conflict of Interests. A conflict of interests transaction
is a transaction with the corporation in which a director or the corporation has
a direct or indirect personal interest. A conflict of interests transaction
shall not be voidable by the corporation solely because of the director's
interest in the transaction if any one of the following is true in accordance
with Section 13.1-691 of the Code:
(1) the material facts of the transaction and the director's
interest were disclosed or known to the Board of Directors or a committee of the
Board of Directors and the Board of Directors or committee authorized, approved
or ratified the transaction;
(2) the material facts of the transaction and the director's
interest were disclosed to the shareholders entitled to vote and they
authorized, approved or ratified the transaction; or
(3) the transaction was fair to the corporation.
ARTICLE IV
OFFICERS
30. Officers. As a minimum, the officers of the corporation shall be a
President and a Secretary, each of whom shall be appointed by the Board of
Directors at its regular meeting following the annual meeting of the
shareholders. The Board of Directors may appoint such other officers ,
including, but not limited to, a Chief Executive Officer and Chairman of the
Board, and assistant officers and fill any vacancy at any regular or special
meeting of the Board of Directors. A duly appointed officer may appoint one or
more officers or assistant officers as may be authorized by these bylaws or the
Board of Directors. The same individual may
17
<PAGE>
simultaneously hold more than one office. Each officer shall be appointed to
hold office until the next succeeding regular meeting of the Board of Directors
following the annual meeting of the shareholders, or for such longer or shorter
terms as the Board of Directors may specify, and until his successor shall have
been elected or such earlier time as he shall resign, die or be removed. Each
officer shall have the authority and perform the duties set forth in these
bylaws or, to the extent consistent with these bylaws, the duties prescribed by
the Board of Directors or by direction of an officer authorized by the Board of
Directors to prescribe the duties of other officers.
31. Chairman. The Chairman shall preside at all meetings of the Board
of Directors and shareholders and shall have the power to call special meetings
of the shareholders and Directors for any purpose.
32. Chief Executive Officer ("CEO"). The CEO shall be responsible for
the implementation of the policies adopted by the Board of Directors and shall
have general supervision of the business of the Corporation, except as may be
limited by the Board of Directors, the Articles of Incorporation, or these
Bylaws. The CEO may hire, appoint and discharge, subject to the approval of the
Board of Directors, employees and agents of the corporation and fix their
compensation; may make and sign deeds, leases, contracts and agreements in the
name and on behalf of the corporation; and shall have power to carry into effect
all directions of the Board of Directors.
33. President. If these is no CEO, the President shall have the same
duties, authority and obligations as the CEO. If these is a CEO, the President
shall supervise and control the day-to-day activities of the Corporation and
shall have such other duties as are incidental to his office, except as may be
limited by the Board of Directors, the Articles of Incorporation, or these
Bylaws. The President may hire, appoint, and discharge, subject to the approval
of the Board of Directors, employees and agents of the Corporation and fix their
compensation; may make and sign deeds, leases, contracts, and agreements in the
name and on behalf of the Corporation; and shall have power to carry into effect
all directions of the Board of Directors.
34. Secretary. The Secretary shall be the ex-officio clerk of the Board
of Directors, shall have the power to call special meetings of the shareholders
and directors for any purpose and shall give, or cause to be given, notices of
all meetings of shareholders and directors, and all other notices required by
these bylaws or by law. The Secretary shall record the proceedings of the
meetings of the shareholders and directors in a book kept for that purpose and
shall keep the seal of the corporation and attach it to all documents requiring
such impression unless some other officer is designated to do so by the Board of
Directors. The Secretary shall have responsibility for authenticating records of
the corporation and shall perform such other duties as may be assigned from time
to time by the Board of Directors.
35. Vice President. There may be one or more Vice Presidents who shall
exercise all of the functions of the President during the absence or incapacity
of the latter and such other duties as may be assigned from time to time by the
Board of Directors.
18
<PAGE>
36. Treasurer. There may be a Treasurer who shall keep or cause to be
kept full and accurate books of account, render a financial statement showing
all transactions of the Treasurer and the financial condition of the corporation
as may be required by the Board of Directors or the President and perform such
other duties as may be assigned from time to time by the Board of Directors.
37. Assistant Secretary. There may be one or more Assistant Secretaries
who shall exercise all of the functions of the Secretary during the absence or
incapacity of the latter and such other duties as may be assigned from time to
time by the Board of Directors.
38. Other Officers. There may be one or more Assistant Vice Presidents
or Assistant Treasurers and other officers and assistant officers who shall
perform such duties as may be assigned from time to time by the Board of
Directors.
39. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors unless otherwise delegated
to the President by the Board of Directors.
40. Resignation and Removal. An officer may resign at any time by
delivering notice to the corporation. A resignation is effective when the notice
is delivered unless the notice specifies a later effective date. If a
resignation is made effective at a later date and the corporation accepts the
future effective date, it may fill the pending vacancy before the effective date
if the successor does not take office until the effective date. The Board of
Directors may remove any officer at any time with or without cause and any
officer or assistant officer, if appointed by another officer, may likewise be
removed by such officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
41. Indemnification. The corporation shall indemnify an individual who
entirely prevails in the defense of any proceeding to which he was a party
because he is or was a director of the corporation against reasonable expenses
incurred by him in connection with the proceeding. The corporation shall also
indemnify an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if:
(1) he conducted himself in good faith; and
(2) he believed:
(a) in the case of conduct in his official capacity
with the corporation, that his conduct was in its best interests; and
(b) in all other cases, that his conduct was at least
not opposed to its best interests; and
19
<PAGE>
(3) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
A director's conduct with respect to an employee benefit plan
for a purpose he believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement that his
conduct was at least not opposed to the best interests of the corporation.
The termination of a proceeding by judgment, order, settlement
or conviction is not, of itself, determinative that the director did not meet
the standard of conduct described in this Section 41 of these bylaws.
Notwithstanding the foregoing, the corporation shall not
indemnify a director under this Section 41 of these bylaws:
(1) in connection with a proceeding by or in the right of the
corporation in which the director is adjudged liable to the corporation; or
(2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he is adjudged liable on the basis that personal benefit was
improperly received by him.
Indemnification granted under this Section 41 of these bylaws
in connection with a proceeding by or in the right of the corporation is limited
to reasonable expenses incurred in connection with the proceeding. The
definitions as set forth in Section 13.1-696 of the Code, as in effect from time
to time, shall apply with respect to Sections 41 through 46 of these bylaws.
42. Advance for Expenses. The corporation shall pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) the director furnishes the corporation a written statement
of his good faith belief that he has met the standard of conduct described in
Section 41 of these bylaws;
(2) the director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay the advance if it is
ultimately determined that he did not meet the standard of conduct (which
undertaking shall be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to financial ability to
make repayment); and
(3) a determination is made that the facts then known to those
making the determination would not preclude indemnification under Article 10 of
the Act or this Article V of these bylaws.
20
<PAGE>
43. Determination and Authorization of Indemnification. The corporation
shall not indemnify a director under this Article V of these bylaws unless
authorized in the specific case after a determination has been made that
indemnification of the director is required under this Article V of these bylaws
because he has met the standard of conduct set forth hereunder. The
determination 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;
(2) if such a quorum cannot be obtained, by majority vote of a
committee duly designated by the Board of Directors (in which directors who are
parties may participate in such designation), consisting solely of two or more
directors not at the time parties to the proceeding:
(3) by special legal counsel:
(a) selected by the Board of Directors or its
committee in the manner prescribed in subsection (1) or (2) above;
(b) if such a quorum of the Board of Directors cannot
be obtained; and such a committee cannot be designated, selected by a majority
vote of the full Board of Directors, in which directors who are parties may
participate in such selection; or
(4) by the shareholders, but shares owned by or voted under
the control of directors who are at the time parties to the proceeding may not
be voted on the determination.
Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (3)
of this Section 43 to select counsel.
44. Indemnification of Officers, Employees, Agents and Others. Each
officer, employee and agent of the corporation shall be entitled to
indemnification and advance expenses to the same extent as to a director.
45. Insurance. The corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer, employee or agent of
the corporation, or who, while a director, officer, employee or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee or agent,
whether or not the corporation would have power to indemnify him against the
same liability under Section 41 of these bylaws.
21
<PAGE>
46. Application. The corporation shall have power to make any further
indemnity, including advance of expenses, to any director, officer, employee or
agent that may be authorized by the Articles of Incorporation or any bylaw made
by the shareholders or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against his gross negligence or willful
misconduct. Unless the Articles of Incorporation or any such bylaw or resolution
provide otherwise, any determination as to any further indemnity shall be made
in accordance with Section 43 of these bylaws. Each such indemnity may continue
as to a person who has ceased to have the capacity referred to above and may
inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE VI
CERTIFICATES OF STOCK
47. Form and Content. Each stock certificate shall state on its face
the name of the corporation and that it is organized under the law of
Commonwealth of Virginia, the name of the person to whom issued and the number
and class of stock and the designation of the series, if any, the certificate
represents. If the corporation is authorized to issue different classes of stock
or different series within a class, the designations, relative rights,
preferences and limitations applicable to each class and the variations in
rights, preferences and limitations determined for each series (and the
authority of the Board of Directors to determine variations for future series)
shall be summarized on the front or back of each certificate for stock of such
class or series. Alternatively, each certificate may state conspicuously on its
front or back that the corporation will furnish the shareholder this information
on request in writing and without charge. Each stock certificate shall be signed
by the President and the Secretary or an Assistant Secretary and shall bear the
corporate seal or its facsimile. The signatures of the officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation or an employee
of the corporation.
48. Fractional Shares. The corporation may, if authorized by the Board
of Directors, issue fractions of a share or pay in money the value of fractions
of shares, arrange for disposition of fractional shares by the shareholders or
issue scrip in registered or bearer form entitling the holder to receive a full
share upon surrendering enough scrip to equal a full share. Each certificate
representing scrip shall be conspicuously labeled "Scrip" and shall contain the
information required by Section 47 of these bylaws. The holder of a fractional
share is entitled to exercise the rights of a shareholder, including the right
to vote, to receive dividends and to participate in the assets of the
corporation upon dissolution. The holder of scrip is not entitled to any of
these rights unless the scrip provides for them.
The Board of Directors may authorize the issuance of scrip
subject to any condition considered desirable by it, including that the scrip
will become void if not exchanged for full shares before a specified date and
that the shares for which the scrip is exchangeable may be sold by the
corporation and the proceeds paid to the scrip holders.
22
<PAGE>
When the corporation is to pay in money the value of fractions
of a share, such value shall be determined by the Board of Directors. A good
faith judgment of the Board of Directors as to the value of a fractional share
is conclusive.
49. Lost Certificates. The Board of Directors may direct new
certificates to be issued in place of any lost or destroyed certificate or
certificates previously issued by the corporation if the person or persons who
claim the certificate or certificates make an affidavit stating that the
certificates of stock have been lost or destroyed. When authorizing the issuance
of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificates, or the legal representative, to
advertise the same in such manner as the Board of Directors shall require and/or
to give the corporation a bond or other form of indemnification, in such sum,
and with or without surety, as the Board of Directors may direct, to indemnify
the corporation against any claim that may be made against the corporation with
respect to the certificate or certificates alleged to have been lost or
destroyed.
50. Transfer of Stock. Upon surrender to the corporation, or to the
transfer agent of the corporation, if any, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate, and record the transaction
upon its books.
51. Registered Shareholders. The corporation shall be entitled to treat
the holder of record of any share or shares of stock as the owner thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person. The
corporation shall not be liable for registering any transfer of shares which are
registered in the name of a fiduciary unless done with actual knowledge that the
fiduciary is committing a breach of obligation as fiduciary in making the
transfer, or unless done with actual knowledge of such facts that the
corporation's action in registering the transfer amounts to bad faith.
ARTICLE VII
RECORDS AND REPORTS
52. Corporate Records. The corporation shall keep as permanent records
its Articles of Incorporation or restated Articles of Incorporation and all
amendments thereto and bylaws or restated bylaws and all amendments thereto
currently in effect, all written communications to shareholders generally,
annual reports filed with the Virginia State Corporation Commission, minutes of
all meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting and a record
of all actions taken by a committee of the Board of Directors in place of the
Board of Directors on behalf of the corporation. The corporation shall maintain
appropriate accounting records. The corporation or its agent shall maintain the
names and business addresses of its officers and directors and a record of its
shareholders, in a form that permits preparation of a list of the names and
addresses of all shareholders, in alphabetical order by class and series, if
any, of shares showing the number
23
<PAGE>
and class and series, if any, of shares held by each. The corporation shall
maintain its records in written form or in another form capable of conversion
into written form within a reasonable time.
53. Inspection of Records by Shareholders. Subject to Section
13.1-772.C. of the Code, a shareholder of the corporation or his agent or
attorney is entitled to inspect and copy (at his expense), during regular
business hours at the corporation's principal office, any of the records of the
corporation described in Section 13.1-770.E. of the Code if he gives the
corporation written notice of his demand at least five (5) business days before
the date on which he wishes to inspect and copy.
A shareholder of the corporation or his agent or attorney is
entitled to inspect and copy (at his expense), during regular business hours at
a reasonable location specified by the corporation, any of the records of the
corporation described in Section 13.1-771.B. of the Code if the shareholder
meets the requirements set forth in Section 13.1-771.C. of the Code and gives
the corporation written notice of his demand at least five (5) business days
before the date on which he wishes to inspect and copy such records.
54. Financial Statements for Shareholders. If requested in writing by
any shareholder, the corporation shall furnish the shareholder with the
financial statements for the most recent fiscal year, which may be consolidated
or combined statements of the corporation and one or more of its subsidiaries,
as appropriate, that include a balance sheet as of the end of the fiscal year,
an income statement for that year and a statement of changes in shareholders'
equity for the year unless that information appears elsewhere in the financial
statements. If financial statements are prepared for the corporation on the
basis of generally accepted accounting principles, the annual financial
statements must also be prepared on that basis.
If the annual financial statements are reported upon by a
public accountant, his report must accompany them. If the annual financial
statements are not reported upon by a public accountant, the President or the
person responsible for the corporation's accounting records shall provide the
shareholder with a statement of the basis of accounting used in preparation of
the annual financial statements and a description of any respects in which the
statements were not prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
24
<PAGE>
ARTICLE VIII
MISCELLANEOUS
55. Control Share Acquisitions. The corporation is authorized to redeem
shares of its Common Stock acquired in a control share acquisition in accordance
with Section 13.1-728.7 of the Code.
56. Registered Office and Agent. The corporation shall at all times
have a registered office and a registered agent.
57. Seal. The seal of the corporation shall be a flat faced circular
die containing the word "SEAL" in the center and the name of the corporation or
an appropriately abbreviated name around the circumference.
58. Amendment of Bylaws. The corporation's Board of Directors may amend
or repeal the corporation's bylaws except to the extent that:
(1) the Articles of Incorporation or the Act reserve this
power exclusively to the shareholders;
(2) the shareholders in adopting or amending particular bylaws
provide expressly that the Board of Directors may not amend or repeal that
bylaw;
(3) a corporation's shareholders may amend or repeal the
corporation's bylaws even though the bylaws also may be amended or repealed by
its Board of Directors.
59. General. Any matters not specifically covered by these bylaws shall
be governed by the applicable provisions of the Code in force at the time.
The foregoing Amended and Restated Bylaws for Colonial Downs
Holdings, Inc. have been approved and adopted pursuant to a Consent of Directors
in Lieu of Special Meeting dated February 11, 1997.
COLONIAL DOWNS HOLDINGS, INC.
/s/ Arnold W. Stansley
---------------------------------
Arnold W. Stansley, Secretary
