RESTATED BYLAWS OF
CHURCHILL DOWNS INCORPORATED
ARTICLE I
OFFICE AND SEAL
SECTION 1. OFFICES. The principal office of the Corporation in
the State of Kentucky shall be located at 700 Central Avenue, Louisville,
Kentucky. The Corporation may have such other offices, either within or without
the State of Kentucky, as the business of the Corporation may require from time
to time.
SECTION 2. THE CORPORATE SEAL. The Seal of the Corporation shall
be circular in form, mounted upon a metal die suitable for impressing same upon
paper, and along the upper periphery of the seal shall appear the word
"Churchill Downs" and along the lower periphery thereof the word "Kentucky". The
center of the seal shall contain the word "Incorporated".
ARTICLE II
STOCKHOLDERS MEETINGS AND RECORD DATES
SECTION 1. ANNUAL MEETING. The date of the annual meeting of the
stockholders for the purpose of electing directors and for the transaction of
such other business as may come before the meeting shall be established by the
Board of Directors, but shall not be later than 180 days following the end of
the Corporation's fiscal year. If the election of Directors shall not be held on
the day designated for any annual meeting, or at any adjournment thereof, the
Board of Directors shall cause the election to be held at a special meeting of
the stockholders to be held as soon thereafter as may be convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders
may be called by holders of not less than 662/3% of all shares entitled to vote
at the meeting, or by a majority of the members of the Board of Directors.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate
any place within or without the State of Kentucky as the place of meeting for
any annual meeting of stockholders, or any place either within or without the
State of Kentucky as the place of meeting for any special meeting called by the
Board of Directors.
If no designation is made, or if a special meeting be called by
other than the Board of Directors, the place of meeting shall be the principal
office of the Corporation in the State of Kentucky.
SECTION 4. NOTICE OF MEETINGS. Written notice stating the place,
day
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and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the President, or the
Secretary, or the officer or persons calling the meeting, to each stockholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail in a sealed envelope
addressed to the stockholder at his address as it appears on the records of the
Corporation, with first class postage thereon prepaid.
SECTION 5. RECORD DATE. The Corporation's record date shall be
fixed by the Board of Directors for the determination of stockholders entitled
to notice of or to vote at a meeting of stockholders, or stockholders entitled
to receive any distribution. When a determination of stockholders entitled to
vote at any meeting of stockholders has been made as provided herein, such
determination shall apply to any adjournment thereof.
SECTION 6. VOTING LISTS AND SHARE LEDGER. The Secretary shall
prepare a complete list of the stockholders entitled to vote at any meeting, or
any adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares held by each stockholder, which list shall be produced and
kept open at the meeting and shall be subject to the inspection of any
stockholder during the meeting. The original share ledger or stock transfer
book, or a duplicate thereof kept in this State, shall be prima facie evidence
as to the stockholders entitled to examine such list or share ledger or stock
transfer book, or the stockholders entitled to vote at any meeting of
stockholders or to receive any dividend.
SECTION 7. QUORUM. A majority of the outstanding shares entitled
to vote, represented in person or by proxy, shall constitute a quorum at any
meeting of stockholders. The stockholders present at a duly organized meeting
can continue to do business at any adjourned meeting, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 8. PROXIES. At all meetings of stockholders, a
stockholder may vote by proxy. An appointment of a proxy shall be executed in
writing by the stockholder or by his duly authorized attorney-in-fact and be
filed with the Secretary of the Corporation before or at the time of the
meeting.
SECTION 9. NATURE OF BUSINESS. At any meeting of stockholders,
only such business shall be conducted as shall have been brought before the
meeting by or at the direction of the Board of Directors or by any stockholder
who complies with the procedures set forth in this Section 9.
No business may be transacted at any meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before
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such meeting of stockholders by or at the direction of the Board of Directors,
or (c) in the case of any annual meeting of stockholders or a special meeting
called for the purpose of electing directors, otherwise properly brought before
such meeting by any stockholder (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 9 and on the record
date for the determination of stockholders entitled to vote at such meeting of
stockholders and (ii) who complies with the notice procedures set forth in this
Section 9.
In addition to any other applicable requirements, for business to
be properly brought before any annual meeting of stockholders by a stockholder,
or for a nomination of a person to serve as a Director, to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary.
To be timely, a stockholder's notice to the Secretary must be
delivered or mailed to and be received at the principal executive offices of the
Corporation (a) in the case of the annual meeting of stockholders, not less than
ninety(90) nor more than one hundred and twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting of stockholders is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder, in order to be timely, must be so
received not later than the close of business on the tenth (10th) day following
the day on which notice of the date of the annual meeting of stockholders was
mailed or public disclosure of the date of such meeting was made, whichever
first occurs; and (b) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
special meeting of stockholders was mailed or public disclosure of the date of
such meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter (including nominations) such
stockholder proposes to bring before the meeting of stockholders (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting the business at the meeting, (b) the name and record
address of such stockholder, (c) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such stockholder as of the record date for the meeting (if such date shall then
have been made publicly available and shall have occurred) and as of the date of
such notice, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business, (e) as to each person
whom the stockholder proposes to nominate for election as a director (i) the
name, age, business address and residence address of the person and (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person as of the record date for the
meeting (if such date shall then have been made publicly available and shall
have occurred) and as of the date
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of such notice, (f) any other information which would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with the solicitations of proxies for the proposal (including, if
applicable, with respect to the election of directors) pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder if such stockholder were engaged in such solicitation,
and (g) a representation that such stockholder intends to appear in person or by
proxy at the meeting to bring such business before the meeting. Any notice
concerning the nomination of a person for election as a director must be
accompanied by a written consent of the proposed nominee to being named as a
nominee and to serve as a director if elected.
No business shall be conducted and no person shall be eligible for
election as a Director at any annual meeting of stockholders or a special
meeting of stockholders called for the purpose of electing directors except
business or nominations brought before such meeting in accordance with the
procedures set forth in this Section 9; provided, however, that, once business
has been properly brought before the meeting in accordance with such procedures,
nothing in this Section 9 shall be deemed to preclude discussion by any
stockholder of any such business. If the chairman of the meeting of stockholders
determines that business was not properly brought before such meeting, or a
nomination was not properly made, as the case may be, in accordance with the
foregoing procedures, the chairman shall declare to the meeting that (a) the
business was not properly brought before the meeting and such business shall not
be transacted, or, if applicable, (b) the nomination was defective and such
defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by a Board of Directors.
SECTION 2. NUMBER AND TENURE. The Board of Directors shall
consist of fifteen (15) members but the number may be increased or decreased by
amendment of this Bylaw. The Directors shall be divided into three classes,
consisting of five (5) Class I Directors, five (5) Class II Directors and five
(5) Class III Directors. Each director shall hold office for a term of three (3)
years or until his successor shall have been elected and qualifies for the
office, whichever period is longer. Directors Emeritus may attend all regular
and special meetings of the Board of Directors and shall serve in an advisory
capacity without a vote in Board actions.
SECTION 3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw, immediately after,
and at the same place as, the annual meeting of stockholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Kentucky, for the
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holding of additional regular meetings without other notice than such
resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the President, the Chairman of
the Board or the majority of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix any place,
either within or without the State of Kentucky, as the place for holding any
special meeting of the Board of Directors.
SECTION 5. NOTICE. Notice of any special meeting of the Board of
Directors shall be given by notice delivered personally, by mail, by telegraph
or by telephone. If mailed, such notice shall be given at least five (5) days
prior thereto and such mailed notice shall be deemed to have been delivered upon
the earlier of receipt or five (5) days after it is deposited in the United
States mail in a sealed envelope so addressed, with first class postage thereon
prepaid. If notice is given by telegram, it shall be delivered at least twenty-
four (24) hours prior to the special meeting and such telegram notice shall be
deemed to have been delivered when the telegram is delivered to the telegraph
company. Personal notice and notice by telephone shall be given at least
twenty-four (24) hours prior to the special meeting and shall be deemed
delivered upon receipt. Any Director may waive notice of any meeting. The
attendance of a Director at any meeting shall constitute a waiver of notice of
such meeting, except when a Director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 6. QUORUM. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, provided that if less than a majority of the Directors are present
at said meeting, a majority of the Directors present may adjourn the meeting
from time to time without further notice.
SECTION 7. MANNER OF ACTING. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 8. VACANCIES. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors. A Director
elected to fill a vacancy shall serve until the next annual meeting of the
stockholders.
SECTION 9. INFORMAL ACTION. Any action required or permitted to
be taken of the Board of Directors or of a committee of the Board, may be taken
without a meeting if a consent, in writing, setting forth action so taken shall
be signed by all of the Directors, or all of the members of the committee, as
the case may be. Members of the Board of Directors or any committee designated
by the Board may participate in a meeting
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of such Board or committee by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear or speak to each other at the same time. Participation in a meeting
pursuant to this section shall constitute presence in person at the meeting.
SECTION 10. NOMINATION OF DIRECTORS. Only persons who are
nominated in accordance with the procedures set forth in Section 9 of Article II
of these Bylaws shall be eligible for election as Directors of the Corporation,
except as may be otherwise provided in the Restated Articles of Incorporation
with respect to the right of holders of preferred stock of the Corporation to
nominate and elect a specified number of Directors in certain circumstances.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 1. COMMITTEES. The Board of Directors shall have
authority to establish such committees as it may consider necessary or
convenient for the conduct of its business. All committees so established shall
keep minutes of every meeting thereof and such minutes shall be submitted at the
next regular meeting of the Board of Directors at which a quorum is present, and
any action taken by the Board with respect thereto shall be entered in the
minutes of the Board. Each committee so established shall elect a Chairman of
the committee. On all committees where the Chairman of the Board is not
appointed as a voting member, the Chairman of the Board shall be an ex officio,
nonvoting member of that committee.
SECTION 2. THE EXECUTIVE COMMITTEE. The Board of Directors shall
appoint and establish an Executive Committee composed of up to six (6) Directors
who shall be appointed by the Board annually. The Executive Committee shall have
and may exercise when the Board of Directors is not in session, all of the
authority of the Board of Directors that may lawfully be delegated; provided,
however, the Executive Committee shall not have the power to enter into any
employment agreement with an officer of the Corporation, without the specific
approval and ratification of the Board of Directors. A majority in membership of
the Executive Committee shall constitute a quorum.
SECTION 3. THE AUDIT COMMITTEE. The Board of Directors shall
appoint and establish an Audit Committee composed of up to five (5) Directors,
none of whom shall be officers, who shall be appointed by the Board annually.
The Audit Committee shall make an examination every twelve months into the
affairs of the Corporation and report the results of such examination in writing
to the Board of Directors at the next regular meeting thereafter. Such report
shall state whether the Corporation is in sound condition and whether adequate
internal audit controls and procedures are being maintained and shall include
recommendations to the Board of Directors regarding such changes in the manner
of doing business or conducting the affairs of the Corporation as shall be
deemed advisable.
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SECTION 4. THE COMPENSATION COMMITTEE. The Board of Directors
shall appoint and establish a Compensation Committee to be composed of five (5)
Directors who shall be appointed by the Board annually. Each member of the
Compensation Committee shall be a director who is not, during the one year prior
to service or during such service, granted or awarded equity securities pursuant
to any executive compensation plan of the Company. It shall be the duty of the
Compensation Committee to administer the Company's Supplemental Benefit Plan[s],
the Company's Incentive Compensation Plan[s], the Company's Stock Option
Plan[s], any executive compensation plan and any shareholder approved employee
stock purchase or thrift plan, including without limitation, matters relating to
the amendment, administration, interpretation, employee eligibility for and
participation in, and termination of, the foregoing plans. It shall further be
the duty of the Compensation Committee to review annually the salary paid to the
President and Chief Executive Officer of the Company and to exercise any other
authorities relating to compensation that the Board may lawfully delegate to it;
provided, however, the Compensation Committee shall not have the power to enter
into any employment agreement with an officer of the Company without the
specific approval and ratification of the Board of Directors.
SECTION 5. THE RACING COMMITTEE. The Board of Directors shall
appoint and establish a Racing Committee to be composed of up to four (4)
Directors who shall be appointed by the Board annually. The Racing Committee
shall be responsible for and shall have the authority to obligate the
Corporation with respect to matters concerning the Corporation's contracts and
relations with horsemen, jockeys and others providing services relating to the
conduct of horse racing, including the authority to approve and cause the
Corporation to enter into contracts with organizations representing horsemen
and/or commit to provide benefits or services by the Corporation to horsemen and
others.
SECTION 6. NOTICE OF COMMITTEE MEETINGS. Notice of all meetings
by the committees established in this Article shall be given in accordance with
the special meeting notice section, Article III, Section 5, of these Bylaws.
ARTICLE V
OFFICERS
SECTION 1. CLASSES. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Secretary, a
Treasurer and such other officers and agents as may be provided by the Board and
elected in accordance with the provisions of this Article. Any of the offices
may be combined in one person in accordance with the provisions of law. The
Chairman of the Board of Directors shall be a member of the Board but none of
the other officers is required to be a member of the Board.
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SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign or shall have been removed
from office in the manner hereinafter provided.
SECTION 3. REMOVAL. Any officer elected by the Board of Directors
may be removed by the President whenever in his judgment the best interest of
the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed and shall be
subject always to supervision and control of the Board of Directors. Election or
appointment of an officer or agent shall not of itself create contractual
rights.
SECTION 4. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall call to order and preside at all stockholders' meetings and at
all meetings of the Board of Directors. He shall perform such other duties as he
may be authorized to perform by the Board of Directors.
SECTION 5. PRESIDENT. The President shall be the chief executive
officer of the Corporation and as such shall in general supervise and control
all of the business operations and affairs of the Corporation. In the absence of
the Chairman of the Board of Directors, or in the event of the death or
incapacity of the Chairman, the President shall perform the duties of the
Chairman until a successor Chairman is elected or until the incapacity of the
Chairman terminates. The President shall have full power to employ and cause to
be employed and to discharge and cause to be discharged all employees of the
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Corporation, subject always to supervision and control of the Board of
Directors. When authorized so to do by the Board of Directors, he shall execute
contracts and other documents for and in behalf of the Corporation. Unless
otherwise ordered by the Board of Directors, the President shall have full power
and authority on behalf of the Corporation to attend, act and vote at any
meeting of stockholders of any corporation in which this Corporation may hold
stock. He shall perform such other duties as may be specified in the Bylaws and
such other duties as he may be authorized to perform by the Board of Directors.
SECTION 6. EXECUTIVE VICE PRESIDENT. In the case of the death of
the President or in the event of his inability to act, the Executive Vice
President designated by the Board shall perform the duties of the President and,
when so acting, shall have all the powers of and be subject to all restrictions
upon the President. The Executive Vice President shall perform such other duties
as from time to time may be assigned by the President or by the Board of
Directors.
SECTION 7. TREASURER. The Treasurer, subject to the control of
the Board of Directors, and together with the President, shall have general
supervision of the finances of the Corporation. He shall have care and custody
of and be responsible for all moneys due and payable to the Corporation from any
source whatsoever and deposit such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of these Bylaws. The Treasurer shall have the care of, and
be responsible for all securities, evidences of value and corporate instruments
of the Corporation, and shall supervise the officers and other persons
authorized to bank, handle and disburse its funds, informing himself as to
whether all deposits are or have been duly made and all expenditures duly
authorized and evidenced by proper receipts and vouchers. He shall cause full
and accurate books to be kept, showing the transactions of the Corporation, its
accounts, assets, liabilities and financial condition, which shall at all times
be open to the inspection of any Director, and he shall make due reports to the
Board of Directors and the stockholders, and such statements and reports as are
required of him by law. Subject to the Board of Directors, he shall have such
other powers and duties as are incident to his office and not inconsistent with
the Bylaws, or as may be assigned to him at any time by the Board.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of
the Board of Directors, make a record of the business transacted and record same
in one or more books kept for that purpose. The Secretary shall see that the
Stock Transfer Agent of the Corporation keeps proper records of all transfers,
cancellations and reissues of stock of the Corporation and shall keep a list of
the stockholders of the Corporation in alphabetical order, showing the Post
Office address and number of shares owned by each. The Secretary shall also keep
and have custody of the seal of the Corporation and when so directed and
authorized by the Board of Directors shall affix such seal to instruments
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requiring same. The Secretary shall be responsible for authenticating records of
the Corporation and shall perform such other duties as may be specified in the
Bylaws or as he may be authorized to perform by the Board of Directors.
SECTION 9. VICE PRESIDENTS. There may be additional Vice
Presidents elected by the Board of Directors who shall have such
responsibilities, powers and duties as from time to time may be assigned by the
President or by the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS AND AGREEMENTS. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into any contract
or agreement or execute and deliver any instruments in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation, and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ORDERS, ETC. All checks, drafts or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents, of the Corporation and in such manner as shall from
time to time be determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies, or other depositories as the Board of Directors
may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing
shares of the Corporation shall be in such form as may be determined by the
Board of Directors. Such certificates shall be signed by the President or Vice
President and by the Secretary or an assistant Secretary and may be sealed with
the seal of the Corporation of a facsimile thereof. All certificates surrendered
to the Corporation for transfer shall be canceled, and no new certificate shall
be issued until the former certificate for all like
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number of shares shall have been surrendered and cancelled, except that in case
of a lost, destroyed or mutilated certificate, a new one may be issued therefor
upon such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
SECTION 2. TRANSFER OF SHARES. Transfer of shares of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof or by his attorney authorized by power of attorney duly executed
and filed with the Secretary of the Corporation, and on surrender for
cancellation of the certificate for such shares. The person in whose name shares
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall begin on the 1st day of
January and end on the 31st day of December.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions
of these Bylaws, or under the provisions of the Articles of Incorporation, or
under the provisions of the corporation laws of the State of Kentucky, waiver
thereof in writing, signed by the person, or persons, entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE X
INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Corporation shall indemnify and may advance expenses to all
Directors, officers, employees, or agents of the Corporation, and their
executors, administrators or heirs, who are, were or are threatened to be made a
defendant or respondent to any threatened, pending or completed action, suit or
proceedings (whether civil, criminal, administrative or investigative) by reason
of the fact that he is or was a Director, officer, employee or agent of the
Corporation, or while a Director, officer, employee or agent of the Corporation,
is or was serving the Corporation or any other legal entity in any capacity at
the request of the Corporation (hereafter a "Proceeding"), to the fullest extent
that is expressly permitted or required by the statutes of the Commonwealth of
Kentucky and all other applicable law.
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In addition to the foregoing, the Corporation shall, by action of
the Board of Directors, have the power to indemnify and to advance expenses to
all Directors, officers, employees or agents of the Corporation who are, were or
are threatened to be made a defendant or respondent to any Proceeding, in such
amounts, on such terms and conditions, and based upon such standards of conduct
as the Board of Directors may deem to be in the best interests of the
Corporation.
ARTICLE XI
FIDELITY BONDS
The Board of Directors shall have authority to require the
execution of fidelity bonds by all or any of the officers, agents and employees
of the Corporation in such amount as the Board may determine. The cost of any
such bond shall be paid by the Corporation as an operating expense.
ARTICLE XII
AMENDMENT OF BYLAWS
The Board of Directors may alter, amend or rescind these Bylaws,
subject to the right of the stockholders to repeal or modify such actions.
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