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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date earliest event reported) January 27, 1998
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MTR GAMING GROUP, INC.
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(exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
33-22521 84-1103135
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(Commission File Number) (IRS Employer Identification Number)
STATE ROUTE 2 SOUTH, CHESTER, WEST VIRGINIA
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(Address of principal executive offices)
26034
(Zip Code)
Registrant's Telephone Number, Including Area Code: (304) 387-5712
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
(a) Compliance With New Corporate Governance Standards of NASDAQ's Continued
Listing Requirements.
On January 27, 1998, in order to comply with the new corporate governance
standards of NASDAQ's continued listing requirements for small-cap companies,
the Board of Directors of MTR Gaming Group, Inc. (the "Company") authorized and
approved the following actions:
(i) the taking by the Company of all appropriate action necessary for
the Company to satisfy the continued listing requirements for the NASDAQ
Stock Market;
(ii) the amendment of the Company's By-Laws (as of January 27, 1998) to
increase the number of members of the Company's Board of Directors to seven;
(iii) the nomination of Mr. James V. Stanton and Mr. William D. Fugazy,
Jr., subject to their acceptance of such nomination, to fill two of the
vacancies created by the amendment of the Company's By-laws, and to serve as
independent directors of the Company until the next annual meeting of the
Shareholders of the Company or until their successors are elected and qualified
(and in so doing, the Board noted that (A) neither of such nominees is now or
ever has been an officer, director or consultant of the Company or any of its
subsidiaries; (B) neither of such nominees now has or ever had any relationship
with the Company that would interfere with their exercise of independent
judgment in carrying out the responsibilities of a director; and (C) both have
business experience that will benefit the Company and its shareholders); and
(iv) the establishment (as of January 27, 1998) of an Audit Committee of
the Board of Directors (for the purposes of undertaking those matters
customarily undertaken by an audit committee) the members of which shall be
Edson R. Arneault, the Company's President (as Chairman), and Mr. Stanton and
Mr. Fugazy immediately upon their acceptance of their nomination to the
Company's Board of Directors.
On February 18, 1998, Messrs. Stanton and Fugazy accepted their nominations
to the Company's Board of Directors.
James V. Stanton, 65, has his own law and lobbying firm, Stanton &
Associates, in Washington, D.C. From 1971 to 1978, Mr. Stanton represented the
20th Congressional District of Ohio in the United States House of
Representatives. While in Congress Mr. Stanton served on the Select Committee
on Intelligence, the Government Operations Committee, and the Public Works and
Transportation Committee. Mr. Stanton has held a wide variety of public service
positions, including service as the youngest City Council President in the
history of Cleveland, Ohio and membership on the Board of Regents of the
Catholic University of America in Washington, D.C. Mr. Stanton is also former
Executive Vice President of Delaware North, a privately held international
company which, during Mr. Stanton's tenure, had annual sales of over $1 billion
and became the leading pari-mutuel wagering company in the United States, with
worldwide operations including horse racing, harness racing, dog racing, and
Jai-Lai. Delaware
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North also owned the Boston Garden and the Boston Bruins hockey team. From 1985
to 1994, Mr. Stanton was principal and co-founder of Western Entertainment
Corporation, which pioneered one of the first Indian gaming operations in the
United States, a 90,000 square foot bingo and casino gaming operation located on
the San Manuel Indian reservation in California, which generated annual revenues
in excess of $50 million. Mr. Stanton also serves on the boards of CCA
Companies Incorporated, and Saf T Lok, Inc.
Mr. Fugazy, 47, is presently Chairman of Camelot Ventures, Inc. which is a
financial advisory firm based in New York City. Mr. Fugazy is a former Regional
President of Koll Real Estate Service, a company which provided real estate
services throughout the United States and internationally. Koll was one of the
largest real estate services companies in the world and in August, 1997 merged
with CB Commercial Real Estate Group, Inc. Mr. Fugazy served in this capacity
since January 1993. Prior to joining Koll, Mr. Fugazy was President of Tishman
Management and Leasing Services Corporation, also a national real estate service
company which was sold to Koll in 1992. Mr. Fugazy served in that capacity
since September 1989. Prior to joining Tishman, Mr. Fugazy was Senior Vice
President of Muller and Company, a national investment banking and securities
brokerage operation. Mr. Fugazy is also a partner and officer of the Beacon
Hotel and Resort Corporation, a hotel management company with offices in New
York, Los Angeles, California and Miami Beach, Florida. Mr. Fugazy holds a B.S.
Degree from Fordham University in New York.
The Company's management believes that it is currently in compliance with
the new corporate governance standards for NASDAQ's continued listing
requirements which were approved by the Securities and Exchange Commission on
August 22, 1997 and which take effect on February 23, 1998.
(b) Resignation of Thomas K. Russell
On February 16, 1998, the Company entered into an Amendment of Employment
Agreement with Thomas K. Russell (the "Amendment Agreement") which governs, as
of such date, the terms of Mr. Russell's employment with the Company. The
Amendment Agreement replaced a May 10, 1994 agreement pursuant to which Mr.
Russell served as an officer and director of the Company. As of February 16,
1998 neither the Company nor Mr. Russell have any further rights or obligations
under the May 10, 1994 agreement. Pursuant to the terms of the Amendment
Agreement: (i) Mr. Russell resigned from all directorships and offices that he
held with the Company and its affiliates (the "Companies") prior to February 16,
1998 and from membership on any committees of the Companies; (ii) the Company
agreed to pay Mr. Russell the sum of $99,676.94 offset by any advance or pay
received by him from the Company after December 31, 1997 (such offsets totaling
$48,000); (iii) the Company agreed to employ Mr. Russell as an assistant to the
President for a term of twenty (20) months commencing on January 1, 1998 and
terminating on September 15, 1999 (during which time Mr. Russell will not be
expected to devote more than fifteen (15) hours per month to the business of the
Company in consideration of a salary of $1,000.00 per month); and (iv) the
Company and Mr. Russell agreed on certain other provisions including a release
and indemnification, medical insurance, non-disclosure and confidentiality. In
addition, the Company and Mr. Russell agreed that all of their respective
obligations under the Amendment Agreement are expressly conditioned on the
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compliance by the other party with its obligations under such agreement.
Mr. Russell expressly acknowledged in the Amendment Agreement that his
resignation (as described above) was not the result of any disagreement with the
Company on any matter relating to its operations, policies, practices or
procedures within the meaning of Item 6 of Form 8-K.
(c) Appointment of Officers.
On January 27, 1998, at the regular meeting of the board of directors of
the Company, the board appointed the following officers to serve until the
first regular meeting of the board of directors after the next annual meeting of
the Company's shareholders: Edson R. Arneault shall serve as president, chief
executive officer, treasurer, and chief financial officer; Rose Mary Williams
shall serve as secretary; Robert L. Ruben shall serve as assistant secretary;
and Robert A. Blatt shall serve as assistant secretary. In a separate action,
the Company's wholly owned subsidiary, Mountaineer Park, Inc., elected the same
persons to the same offices.
(d) Purchase of 350 Acre Property in Hancock County, West Virginia.
On February 12, 1998, Mountaineer Park, Inc. a subsidiary of the Company
acquired from Realm, Inc., an Ohio corporation, a 350 acre property located in
Chester, Hancock County, West Virginia for a purchase price of $240,000,
exclusive of brokerage fees and closing costs of approximately $30,000 (the "New
Property"). The New Property is unimproved and is contiguous with the existing
606 acre property previously acquired by the Company in Chester, West Virginia
on which the Company's Mountaineer Racetrack & Gaming Resort is situated (the
"Existing Property"). The New Property is separate from the 350 acre property
(with respect to which the Company currently holds a purchase option) which is
also contiguous to the Existing Property. The company currently has no plans
for the development of the New Property.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
1. Action of the Board of Directors dated January 27, 1998;
2. Amended By-laws of the Company;
3. Letter Agreement by and between the Company and James V. Stanton dated
February 18, 1998;
4. Letter Agreement by and between the Company and William D. Fugazy, Jr.
dated February 18, 1998;
5. Amendment of Employment Agreement by an between the Company and Thomas
K. Russell dated February 16, 1998
6. Purchase Agreement by and between Mountaineer Park , Inc. and Realm,
Inc., an Ohio corporation, dated February 12, 1998.
7. Deed dated February 13, 1998, executed by Realm, Inc.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
MTR GAMING GROUP, INC.
By:
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Edson R. Arneault, President
Date: February 20, 1998
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EXHIBIT 1
MTR GAMING GROUP, INC.
ACTION OF BOARD OF DIRECTORS
Robert L. Ruben, Robert A. Blatt, and Edson R. Arneault, being all of the
directors of MTR Gaming Group, Inc., in accordance with Section 141(f) of the
General Corporation Law of the State of Delaware, on this 27th day of January,
1998, at a regular quarterly meeting of the Board of Directors, adopt and
consent to the following:
WHEREAS, since December of 1992 the Company's common stock has been listed
for trading on the Nasdaq Small Cap Market; and
WHEREAS, on August 22, 1997, the Securities and Exchange Commission
approved new corporate governance standards for continued listing on such
market, which standards take effect on February 23, 1998; and
WHEREAS, in order to satisfy the new standards the Company must (i) elect
two independent directors; and (ii) establish an audit committee the majority of
which must be made up of independent directors; and
WHEREAS, the Board believes it is in the best interests of the Company and
its shareholders for the Company to appoint independent directors and establish
an audit committee, both to assure that the Company's securities continue to
qualify for listing on the Nasdaq Stock Market and otherwise; it is therefore:
RESOLVED, that the Company take all appropriate action necessary for the
Company to satisfy the continued listing on the Nasdaq Stock Market; and it is
FURTHER RESOLVED, that the Company's By-Laws be, and the same hereby are,
amended to increase the number of members of the Board of Directors to seven;
and the Secretary of the Corporation is hereby directed to draft appropriate
Amended By-Laws and to attach a copy hereto and to place a copy in the Company's
record book; and it is
FURTHER RESOLVED, that the following individuals be, and they hereby are -
subject to their acceptance of this nomination - nominated to fill two of the
vacancies created by the amendment of the By-Laws and to serve as independent
directors of the Company until the next annual meeting of the shareholders of
the Company or until their successors are elected and qualified
James V. Stanton
William D. Fugazy, Jr.
in that (i) neither is now or ever has been an officer, director, or consultant
of the Company or any of its subsidiaries; (ii) neither now has or ever had any
relationship with the Company
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that would interfere with their exercise of independent judgment in carrying out
the responsibilities of a director; and (iii) both have business experience that
will benefit the Company and its shareholders; and it is
FURTHER RESOLVED, that an Audit Committee of the Board of Directors shall
be, and the same hereby is, established for the purposes of undertaking those
matters customarily undertaken by an audit committee, including but not limited
to overseeing and conducting and working with the Company's independent auditors
and monitoring all of the Company's transactions with respect to any conflicts
of interest or related party transactions; and it is
FURTHER RESOLVED, that the Chairman of the Audit Committee shall be the
Company's president, Edson R. Arneault, whose background as a Certified Public
Accountant makes him uniquely qualified for such position; and that the
Company's independent directors, Messrs. Stanton and Fugazy, shall immediately
upon their acceptance of their nominations to the Board of Directors likewise
become members of the Audit Committee without the need for any further action by
the Board (which written acceptance shall be attached hereto); and it is
FURTHER RESOLVED, that the appropriate officers of the Company are
authorized and directed to undertake all acts and prepare and deliver all
instruments, documents, agreements and other writings as may be now or hereafter
required in connection with the above resolutions; and it is
FURTHER RESOLVED, that until the first regular meeting of the board of
directors after the next annual meeting of the Company's shareholders, the
officers of the Company shall be as follows: Edson R. Arneault shall serve as
president, chief executive officer, treasurer, and chief financial officer; Rose
Mary Williams shall serve as secretary; Robert L. Ruben shall serve as assistant
secretary; and Robert A. Blatt shall serve as assistant secretary.
WITNESS our hands as of the date aforesaid.
/s/ Robert A. Blatt
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Robert A. Blatt
/s/ Robert L. Ruben
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Robert L. Ruben
/s/ Edson R. Arneault
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Edson R. Arneault
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EXHIBIT 2
BYLAWS OF
MTR GAMING GROUP, INC.
MARCH 7,1988; AMENDED AS OF JANUARY 27, 1998
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BYLAWS
OF
MTR GAMING GROUP, INC.
ARTICLE I
Offices
Section 1. Business Offices. The principal office of the corporation
shall be located in Chester, West Virginia or in such other location as the
board of directors may from time to time determine. The corporation may have
such other offices, either within or outside Delaware, as the board of
directors may designate or as the business of the corporation may require
from time to time.
Section 2. Registered Office and Agent. The registered office of the
corporation required by the General Corporation Law of Delaware to be
maintained in Delaware shall be located at 1209 Orange Street, Wilmington,
Delaware 19801. The name of the registered agent at that address is The
Corporation Trust Company. The registered office and the registered agent
may be changed from time to time by the board of directors.
ARTICLE II
Shareholders
Section 1. Annual Meeting. An annual meeting of the shareholders shall
be held on the 1st Tuesday in the month of April in each year, at 10:00 a.m.
or at such other time on such other day as may be determined by the board of
directors, beginning with the year 1989, for the purpose of electing
directors and for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall be a legal holiday
in the State of Delaware, such meeting shall be held on the next succeeding
business day. If the election of directors shall not be held on the day
designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the board of directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as may be
convenient. Failure to hold an annual meeting as required by these bylaws
shall not work a forfeiture or dissolution of the corporation.
Section 2. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be
called by the president or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-tenth of all
the outstanding shares of the corporation entitled to vote at the meeting.
Section 3. Place of Meetings. Each meeting of the shareholders shall be
held at such place, either within or outside the State of Delaware, as may be
specified in the notice of the meeting, or, if no place is specified in the
notice, at the principal office of the corporation in New Castle County,
Delaware. The person or group calling the meeting shall be entitled, but not
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required, to designate in the call the place of the meeting to be specified
in the notice of the meeting.
Section 4. Notice of Meeting. Written notice of each meeting of the
shareholders stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is
called, shall, unless otherwise prescribed by statute, be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by first class, certified or registered mail, by or at
the direction of the president, the secretary or the officer or other person
authorized to give notice of the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, the notice shall be deemed to
be delivered as to any shareholder of record when deposited in the United
States Mail, addressed to the shareholder at his address as it appears on the
stock transfer books of the corporation, with postage prepaid. If (a) notice
of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting during the period
between such two consecutive annual meetings or (b) all, and at least two,
payments of dividends or interest during a twelve month period have been
mailed to the last known address of any shareholder of record and are
returned as undeliverable, no further notices to such shareholder shall be
necessary until another address for such shareholder is made known to the
corporation.
Section 5. Waiver of Notice. When any notice is required to be given to
any shareholder under the provisions of the General Corporation Law of
Delaware or under the provisions of the certificate of incorporation or these
bylaws, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a shareholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 6. Fixing of Record Date. In order that the corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or adjournment thereof, or to consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of any meeting; not more than ten (10) days
after the resolution fixing the record date for any written consent; and not
more than sixty (60) days prior to any other action. If no record date is
fixed, the record date shall be: (a) for determining shareholders entitled
to notice of or to vote at a meeting of shareholders the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held; (b) for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, the day on which the first
written consent is delivered to the corporation; and (c) for determining
shareholders for any other purpose the close of business on the day on which
the board of directors adopts the resolution relating thereto.
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Section 7. Voting Record. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten
days before each meeting of the shareholders, a complete record of the
shareholders entitled to vote at the meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each. The record shall be subject to the inspection of any
shareholder for any purpose germane to the meeting during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The record shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may
be inspected by any shareholder who is present. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled
to examine the record or transfer books or to vote at any meeting of the
shareholders.
Section 8. Proxies. At all meetings of the shareholders, a shareholder
entitled to vote may vote in person, or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact. Any proxy shall be
filed with the secretary of the corporation before or at the time of the
meeting. Unless otherwise provided in the proxy and not prohibited by
applicable law, a proxy may be revoked at any time before it is voted, either
by written notice filed with the secretary or the acting secretary of the
meeting or by oral notice given by the shareholder to the presiding officer
during the meeting. The presence of a shareholder who has filed his proxy
shall not of itself constitute a revocation of the proxy. No proxy shall be
valid after three years from the date of its execution, unless otherwise
provided in the proxy. The board of directors shall have the power and
authority to prescribe rules and regulations establishing presumptions as to
the validity and sufficiency of proxies.
Section 9. Quorum; Action of Shareholders. At all meetings of the
shareholders, a majority of the shares entitled to vote, represented in
person or by proxy (and in no event less than 33 1/3 percent of the
outstanding shares of the corporation's common voting stock), shall
constitute a quorum, and at any meeting at which a quorum is present the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders,
unless the vote of a greater proportion or number is required by the General
Corporation Law of Delaware or the certificate of incorporation. If a quorum
is not present or represented at any meeting of the shareholders, a majority
of the outstanding shares represented at the meeting may adjourn the meeting
from time to time for a period not to exceed sixty days at any one
adjournment. Except as hereafter provided, when a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. However, if the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting. At any such adjourned
meeting at which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the original meeting. The
shareholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum present.
Section 10. Voting of Shares. Each outstanding share of record,
regardless of class, is entitled to one vote, and each fractional share is
entitled to a corresponding fractional vote, on
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each matter submitted to a vote of the shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by or pursuant to the certificate of incorporation as permitted by the
General Corporation Law of Delaware. In the election of directors each
record holder of stock entitled to vote at such election shall have the right
to vote the number of shares owned by him for as many persons as there are
directors to be elected and for whose election he has the right to vote.
Cumulative voting shall not be allowed in the election of directors or for
any other purpose.
Section 11. Voting of Shares by Certain Holders. Neither treasury
shares nor shares held by another corporation if a majority of the shares
entitled to vote for the election of directors of such other corporation is
held by the corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares at any given time.
Shares standing in the name of another corporation, whether
domestic or foreign, may be voted by such officer, agent or proxy as the
bylaws of the other corporation may prescribe, or, in the absence of any such
provision, as the board of directors of the other corporation may determine.
Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. A shareholder whose shares are pledged shall be entitled
to vote such shares unless in the transfer by the pledgor on the books of the
corporation he has expressly empowered the pledgee to vote thereon.
Section 12. Shares Held by Two or More Persons. If shares or other
securities having voting power stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares,
voting with respect to the shares shall, except as hereafter provided, have
the following effect. (a) if only one person votes, his act binds all; (b) if
two or more persons vote, the act of the majority so voting binds all; (c) if
two or more persons vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question proportionally, or
any person voting the shares, or a beneficiary, if any, may apply to any
court of competent jurisdiction in the State of Delaware to appoint an
additional person to act with the persons so voting the shares. The shares
shall then be voted as determined by a majority of such persons and the
person appointed by the court. If a tenancy is held in unequal interests, a
majority or even split for purposes hereof shall be a majority or even split
in interest. The effects of voting stated in the foregoing provisions of this
Section shall not be applicable, however, if the secretary of the corporation
is given written notice of alternate voting provisions and is furnished with
a copy of the instrument or order wherein the alternate voting provisions are
stated.
Section 13. Action Without a Meeting. Any action required or
permitted by the General Corporation Law of Delaware to be taken at any
meeting of the shareholders may be taken without a meeting, without prior
notice, and without a vote if the action is evidenced by one or more written
consents, which may be signed in counterparts, describing the action taken,
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Any such action by written consent shall be effective upon
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the date specified in the consent so long as written consents signed by a
sufficient number of shareholders are delivered to the corporation in the
manner specified above within sixty days of the earliest dated consent.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those shareholders who have
not consented in writing. A written consent of the shareholders given in
accordance with this section has the same force and effect as a vote of such
shareholders and may be stated as such in any document. The record date for
determining shareholders entitled to take action without a meeting is set
forth in Section 6 of this Article II.
Section 14. Order of Business. The order of business at the annual
meeting, and so far as practicable at all other meetings of shareholders,
shall be as follows:
(a) Gall to order.
(b) Roll call -- determination of quorum.
(c) Proof of due notice of meeting or waiver thereof.
(d) Reading and approval of minutes of previous meeting.
(e) Reports from directors, officers and committees.
(f) Election of directors.
(g) Unfinished business.
(h) New business.
(i) Adjournment.
Section 15. Voting By Ballot. Voting on any question or in any
election may be by voice vote unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot, except that the election
of directors shall be by written ballot.
ARTICLE III
Board of Directors
Section 1. General. The business and affairs of the corporation shall be
managed by its board of directors, except as otherwise provided in the
General Corporation Law of Delaware or in the certificate of incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of
the corporation shall be seven. The number of directors may be increased or
decreased at any time by amendment of this bylaw, but no decrease shall have
the effect of shortening the term of any incumbent director. Directors
shall be elected at each annual meeting of the shareholders. Each director
shall hold office until the next annual meeting of the shareholders and
thereafter until his successor shall have been elected and qualified, or
until his earlier death, resignation or removal. Directors shall be natural
persons, eighteen years of age or older, but need not be residents of the
State of Delaware or shareholders of the corporation. Directors shall be
removable in the manner provided by the General Corporation Law of Delaware.
Section 3. Vacancies. Any director may resign at any time by giving
written notice to the president or to the secretary of the corporation. A
director's resignation shall take effect at the time specified in such
notice, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any vacancy
occurring in the board of
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directors may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by the affirmative vote of a majority of the
directors then in office or by an election at an annual meeting or at a
special meeting of the shareholders called for that purpose, and a director
so chosen shall hold office until the next annual meeting of the shareholders
and thereafter until his successor shall have been elected and qualified, or
until his earlier death resignation or removal.
Section 4. 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 the shareholders, for the purpose of
electing officers and for the transaction of such other business as may come
before the meeting. The board of directors may provide by resolution the
time and place, either within or outside Delaware, for the holding of
additional regular meetings without other notice than such resolution.
Section 5. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the president or any one director. The
person or persons authorized to call special meetings of the board of
directors may fix any place as the place, either within or outside Delaware,
for holding any special meeting of the board called by them.
Section 6. Notice. Notice of any special meeting of the board of
directors, stating the place, day and hour of the meeting, shall be given at
least five days prior to the meeting by written notice mailed by first class,
certified or registered mail, to each director at his business or residence
address or by notice given at least two days prior to the meeting by personal
delivery or by telephone, telegraph, telecopier, telex or other similar
device. The method of notice need not be the same to each director. If
mailed, such notice shall be deemed to be given two days after such notice is
deposited in the United States mail so addressed, with postage thereon
prepaid. If personally delivered, notice shall be deemed to be given when
delivered to the director. If notice is given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company. When any notice is required to be given to any director of the
corporation under the provisions of the General Corporation Law of Delaware
or under the provisions of the certificate of incorporation or these bylaws,
a waiver thereof in writing signed by the person entitled to such notice,
whether before, at, or after the time stated therein, shall be equivalent to
the giving of such notice. By attending or participating in a regular or
special meeting, a director waives any required notice of such meeting unless
the director, at the beginning of the meeting, objects to the holding of the
meeting or the transacting of business at the meeting. Neither the business
to be transacted at, nor the purpose of, any meeting of the board of
directors need be specified in the notice or waiver of notice of such meeting.
Section 7. Presumption of Assent. A director who is present at a meeting
of the board or a committee of the board when corporate action is taken is
deemed to have assented to the action taken unless: (a) he objects at the
beginning of such meeting to the holding of the meeting or the transacting of
business at the meeting; (b) he contemporaneously requests that his dissent
from the action taken be entered in the minutes of such meeting; or (c) he
gives written notice of his dissent to the presiding officer of such meeting
before its adjournment or to the secretary of the
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corporation immediately after adjournment of such meeting. Such right of
dissent as to a specific action taken in a meeting of the board or a
committee shall not be available to a director who votes in favor of such
action.
Section 8. Quorum and Voting. A majority of the number of directors
fixed by Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the board of directors, and the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors. If less than a quorum is
present at a meeting, the directors present may adjourn the meeting from time
to time without further notice other than an announcement at the meeting. No
director may vote or act by proxy at any meeting of directors.
Section 9. Compensation. By resolution of the board of directors,
any director may be paid any one or more of the following: his expenses, if
any, of attendance at meetings; a fixed sum for attendance at each meeting; a
stated salary as director; or such other compensation as the corporation and
the director may reasonably agree upon. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
Section 10. Meetings by Telephone. Unless otherwise provided by the
certificate of incorporation, one or more members of the board of directors or
any committee designated by the board may participate in a meeting of the board
or committee by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each other
at the same time. Such participation shall constitute presence in person at the
meeting.
Section 11. Action Without a Meeting. Any action required or permitted
by the General Corporation Law of Delaware to be taken at a meeting of the
board of directors or any committee designated by the board may be taken
without a meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each director or committee member, and
delivered to the secretary for inclusion in the minutes or for filing with
the corporate records. Any such action by written consent shall be effective
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date. Such consent has the same
force and effect as a unanimous vote of the directors or committee members
and may be stated as such in any document.
Section 12. Order of Business. So far as applicable, the order of
business at each meeting of the board of directors shall be as follows:
(a) Call to order.
(b) Roll call -- determination of quorum.
(c) Proof of due notice of meeting or waiver thereof.
(d) Reading and approval of minutes of previous meeting.
(e) Unfinished business.
(f) New business including, but not limited to:
(i) Management reports
(ii) Ratification of acts of officers
(iii) Election of officers
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(iv) Determination of number of directors to be elected at the
annual meeting of shareholders
(v) Fixing the time and place for the next regular meeting
(g) Adjournment.
Section 13. Executive and Other Committees. By one or more
resolutions, the board of directors may designate from among its members an
executive committee and one or more other committees, each of which, to the
extent provided in the resolution establishing such committee, shall have and
may exercise all of the authority of the board of directors, except as
otherwise provided by the General Corporation Law of Delaware. Neither the
designation of any such committee, the delegation of authority to such
committee, nor any action by such committee pursuant to its authority shall
alone constitute compliance by any member of the board of directors, not a
member of the committee in question, with his responsibility to act in good
faith, in a manner he reasonably believes to be in the best interests of the
corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
Section 14. Standard of Care. A director shall perform his duties as a
director, including his duties as a member of any committee of the board upon
which he may serve, in good faith, in a manner he reasonably believes to be
in the best interests of the corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports, or statements, including financial statements and other
financial data, in each case prepared or presented by persons and groups
herein designated; but he shall not be considered to be acting in good faith
if he has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A person who so performs his duties shall not
have any liability by reason of being or having been a director of the
corporation. The designated groups on which a director is entitled to rely
are:
(a) one or more officers or employees of the corporation whom
the director reasonably believes to be reliable and competent in the matters
presented; (b) counsel, public accountants, or other persons as to matters
which the director reasonably believes to be within such person's
professional or expert competence; or (c) a committee of the board upon which
he does not serve, duly designated in accordance with Section 13 of these
bylaws, as to matters within its designated authority, which committee the
director reasonably believes to merit confidence.
Section 15. Conflicts of Interest. No contract or transaction between
the corporation and one or more of its directors, or between the corporation
and any other corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or officers or
have a financial interest, shall be void or voidable solely for that reason
or solely because the director or officer is present at or participates in
the meeting of the board or committee thereof which authorizes, approves, or
ratifies the contract or transaction or solely because his or their votes are
counted for such purpose if: (a) the material facts as to his relationship
or interest and as to the contract or transaction are disclosed or are known
to the board of directors or the committee, and the board or committee in
good faith authorizes, approves, or ratifies the contract or transaction by
the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors are less than a quorum; or (b) the
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material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract or transaction is specifically authorized,
approved, or ratified in good faith by vote of the shareholders; or (c) the
contract or transaction was fair as to the corporation. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the board of directors or of a committee which authorizes, approves, or
ratifies the contract or transaction.
ARTICLE IV
Officers and Agents
Section 1. General. The principal officers of the corporation shall be a
president, a secretary and a treasurer. The board of directors may also
elect or appoint such other officers, assistant officers, committees and
agents, including one or more vice presidents, a chairman of the board, a
controller, assistant secretaries and assistant treasurers, as they may
consider necessary, who shall be chosen in such manner and hold their offices
for such terms and have such authority and duties as from time to time may be
determined by the board of directors. One person may hold more than one
office, except that no person may simultaneously hold the offices of
president and secretary. In all cases where the duties of any officer, agent
or employee are not prescribed by the bylaws or by the board of directors,
such officer, agent or employee shall follow the orders and instructions of
the president. All officers shall be natural persons, eighteen years of age
or older, and the president shall be one of the directors.
Section 2. Election and Term of Office. The principal officers of the
corporation shall be elected by the board of directors annually at the first
meeting of the board held after each annual meeting of the shareholders. If
the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as conveniently may be. Each officer shall
hold office until his successor shall have been elected, appointed or chosen
and shall have qualified, or until his earlier death, resignation or removal.
Section 3. Removal. Any officer or agent may be removed by the board of
directors or by the executive committee, if any, whenever in its judgment the
best interests of the corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not in itself
create contract rights.
Section 4. Vacancies. Any officer may resign at any time, subject to any
rights or obligations under any existing contracts between the officer and
the corporation, by giving written notice to the president or to the board of
directors. An officer's resignation shall take effect at the time specified
in such notice, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. A vacancy in
any office, however occurring, may be filled by the board of directors.
Section 5. President. The president shall, subject to the direction and
supervision of the board of directors: (a) be the chief executive officer of
the corporation and have general and active control of its affairs and
business and general supervision of its officers, agents and employees; (b)
unless there is a chairman of the board, preside at all meetings of the
shareholders and the board of directors; (c) see that all orders and
resolutions of the board of directors are
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carried into effect; and (d) in general, perform all duties incident to the
office of president and such other duties as from time to time may be
assigned to him by the board of directors.
Section 6. Vice Presidents. The vice president, if any (or if there is
more than one then each vice president), shall assist the president and shall
perform such duties as may be assigned to him by the president or by the
board of directors. The vice president, if there is one (or if there is more
than one then the vice president designated by the board of directors, or if
there be no such designation then the vice presidents in order of their
election), shall, at the request of the president, or in the event of his
absence, death or inability or refusal to act, perform the duties of the
president and when so acting shall have all the powers of and be subject to
all the restrictions upon the president.
Section 7. Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, the board of directors, and any committees
of the board; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or otherwise as required by law; (c) be custodian
of the corporate records and of the seal of the corporation and affix the
seal to all documents when authorized by the board of directors; (d) keep at
its registered office or principal place of business within or outside
Delaware a record containing the names and addresses of all shareholders and
the number and class of shares held by each, unless such a record shall be
kept at the office of the corporation's transfer agent or registrar; (e)
sign with the president, or a vice president, certificates for shares of the
corporation, the issuance of which shall have been authorized by resolution
of the board of directors; (f) have general charge of the stock transfer
books of the corporation, unless the corporation has a transfer agent; and
(g) in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him by the
president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary.
The directors and/or shareholders may, however, respectively designate a
person other than the secretary or assistant secretary to keep the minutes of
their respective meetings.
Section 8. Treasurer. The treasurer shall: (a) be the principal
financial officer of the corporation and have the care and custody of all its
funds, securities, evidences of indebtedness and other personal property of
the corporation and shall deposit the same in accordance with the
instructions of the board of directors; (b) receive and give receipts and
acquittances for money paid in on account of the corporation, and pay out of
the funds on hand all bills, payrolls and other just debts of the corporation
of whatever nature upon maturity; (c) unless there is a controller, be the
principal accounting officer of the corporation and as such prescribe and
maintain the methods and systems of accounting to be followed, keep complete
books and records of account, prepare and file all local, state and federal
tax returns, prescribe and maintain an adequate system of internal audit and
prepare and furnish to the president and the board of directors statements of
account showing the financial position of the corporation and the results of
its operations; (d) upon request of the board, make such reports to it as may
be required at any time; and (e) in general, perform all duties incident to
the office of treasurer and such other duties as from time to time may be
assigned to him by the board of directors or the president. Assistant
treasurers, if any, shall have the same powers and duties, subject to
supervision by the treasurer.
Section 9. Surety Bonds. The board of directors may require any officer
or agent of the
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corporation to execute and deliver to the corporation a bond in such sums and
with such sureties as shall be satisfactory to the board, conditioned upon
the faithful performance of his duties and for the restoration to the
corporation of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 10. Salaries. The salaries of the officers shall be as fixed
from time to time by the board of directors and no officer shall be prevented
from receiving a salary by reason of the fact that he is also a director of
the corporation.
ARTICLE V
Stock
Section 1. Issuance of Shares. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including
treasury shares, shall be made only upon authorization by the board of
directors, except as otherwise may be provided by statute.
Section 2. Certificates. The shares of stock of the corporation shall be
represented by certificates signed in the name of the corporation by its
president or a vice president and the secretary or an assistant secretary,
and shall be sealed with the seal of the corporation, or with a facsimile
thereof. Any or all of the signatures on any certificate may also be a
facsimile. In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent, or registrar at the date
of its issue. Each certificate for shares shall be consecutively numbered or
otherwise identified, shall state on the face that the corporation is
organized under the laws of the State of Delaware, the name of the person to
whom issued, the number and class of shares and the designation of the
series, if any, which such certificate represents, and the par value of each
share represented by the certificate or a statement that the shares are
without par value. Each certificate shall be otherwise in such form
consistent with law as shall be prescribed by the board of directors.
Restrictions imposed by the corporation on the transferability of the shares
shall be noted or referred to conspicuously on the certificate. No
certificates shall be issued until the shares represented thereby are fully
paid.
Section 3. Consideration for Shares. Each share of stock, when issued,
shall be fully paid and nonassessable. The shares of the corporation shall
be issued for such consideration expressed in dollars (but not less than the
par value thereof, with respect to shares having a par value) as shall be
fixed from time to time by the board of directors. The consideration for the
issuance of shares may be paid, in whole or in part, in money, in other
property, tangible or intangible, or in labor or services actually performed
for the corporation. The promise of future services shall not constitute
payment or part payment for shares of the corporation, and neither the
promissory note of a subscriber or direct purchaser of shares from the
corporation, nor the unsecured or nonnegotiable promissory note of any other
person shall constitute payment or part payment for shares of the
corporation. The judgment of the board of directors as to the value of any
property or services received shall, in the absence of fraud or bad faith, be
conclusive upon all persons. Treasury shares shall be disposed of for such
consideration expressed in dollars as may be fixed from time to time by the
board of directors.
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Section 4. Lost Certificates. In case of the alleged loss, destruction
or mutilation of a certificate of stock, the board of directors may direct
the issuance of a new certificate in lieu thereof upon such terms and
conditions in conformity with law as the board may prescribe. The board of
directors may in its discretion require a bond in such form and amount and
with such surety as it may determine, before issuing such a new certificate.
Section 5. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, and cancel the old certificate. Every such
transfer of stock shall be entered on the stock books of the corporation.
Section 6. Holders of Record. The corporation shall be entitled to treat
the record holder of any shares of the corporation as the owner thereof for
all purposes, including all rights deriving from the shares. The corporation
shall not be bound to recognize any equitable or other claim to or interest
in the shares or rights deriving from the shares on the part of any other
person, including, without limitation, a purchaser, assignee or transferee of
such shares or rights deriving from the shares, unless and until the
purchaser, assignee, transferee or other person becomes the record holder of
the shares, whether or not the corporation shall have either actual or
constructive notice of the interest. Until the purchaser, assignee or
transferee of any of the shares of the corporation has become the record
holder of the shares, he shall not be entitled to receive notice of meetings,
examine lists of the shareholders, receive dividends or other sums payable to
shareholders, or own, enjoy and exercise any other property or rights
deriving from the shares of the corporation.
Section 7. Transfer Agents, Registrars and Paying Agents. The board of
directors may at its discretion appoint one or more transfer agents,
registrars or agents for making payment upon any class of stock, bond,
debenture or other security of the corporation. Such agents and registrars
may be located either within or outside Delaware. They shall have such
rights and duties and shall be entitled to such compensation as may be agreed.
Section 8. Preemptive Rights. No holder of shares of the corporation
of any class shall have any preemptive or preferential right in or preemptive
or preferential right to subscribe to or for or acquire any new or additional
shares, or any subsequent issue of shares, or any unissued or treasury shares
of the corporation, whether now or hereafter authorized, or any securities
convertible into or carrying a right to subscribe to or for or acquire any
such shares, whether now or hereafter authorized.
Section 9. Restrictions on Transfer. The corporation shall have the
right, at any time, by entering into an agreement with the holders of its
then-outstanding stock, to restrict or limit the sale, transfer, assignment,
pledge, hypothecation, encumbrance or other disposition of the shares of the
corporation, or any part thereof. Such restrictions may apply to lifetime
transfers as well as to transfers upon the death of a shareholder.
Regulations regarding the formalities and procedures to be followed in
seeking to effect any transfer that is restricted by such an agreement may be
set forth in the agreement or prescribed in these bylaws. With respect to
any such agreement to which it is a party, the corporation, on its part,
shall observe and carry out the terms thereof and shall refuse to recognize
any sale, transfer, assignment, pledge, hypothecation,
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encumbrance or other disposition of any of the shares covered by the
agreement unless the same are in conformity with the terms and conditions of
the agreement and with these bylaws. Following its adoption, a copy of any
such agreement shall be filed in the principal office of the corporation, and
notice of the existence of such agreement shall be displayed conspicuously on
the face or back of each certificate representing shares subject to the terms
and conditions of such agreement.
ARTICLE VI
Indemnification
Section 1. Definitions. For purposes of this Article VI, the following
terms shall have the meanings set forth below:
(a) Action - Any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative;
(b) Derivative Action - Any Action by or in the right of the
corporation to procure a judgment in its favor;
(c) Third Party Action - Any Action other than a Derivative
Action;
(d) Indemnified Party - Any person who is or was a party or is
threatened to be made a party to any Action by reason of the fact that he is
or was a director, officer, employee, fiduciary or agent of the corporation
or is or was serving at the request of the corporation as a director,
officer, employee, fiduciary or agent of another corporation, partnership,
joint venture, trust or other enterprise, including without limitation any
employee benefit plan of the corporation for which any such person is or was
serving as trustee, plan administrator or other fiduciary.
Section 2. Third Party Actions. The corporation shall indemnify any
Indemnified Party against expenses (including attorneys' fees), judgments,
fines, excise taxes and amounts paid in settlement actually and reasonably
incurred by him in connection with any Third Party Action if, as determined
pursuant to Section 5 below, he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal Action, had no reasonable cause
to believe his conduct was unlawful.
Section 3. Derivative Actions. The corporation shall indemnify any
Indemnified Party against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
any Derivative Action if, as determined pursuant to Section 5 below, he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such
person is or has been adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless and only to
the extent that the court in which such Action was brought determines
upon application that, despite the adjudication of liability and in view
of all circumstances of the case, such Indemnified Party is fairly and
reasonably entitled to indemnification for such expenses which such court
deems proper.
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Section 4. Success on Merits or Otherwise. If and to the extent that any
Indemnified Party has been successful on the merits or otherwise in defense
of any Action referred to in Section 2 or 3 of this Article VI, or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith without the necessity of any determination that he
has met the applicable standards of conduct set forth in Section 2 or 3 of
this Article VI.
Section 5. Determination. Except as provided in Section 4, any
indemnification under Section 2 or 3 of this Article VI (unless ordered by a
court) shall be made by the corporation only upon a determination that
indemnification of the Indemnified Party is proper in the circumstances
because he has met the applicable standards of conduct set forth in said
Section 2 or 3. Any indemnification under Section 4 of this Article VI
(unless ordered by a court) shall be made by the corporation only upon a
determination by the corporation of the extent to which the Indemnified Party
has been or would have been successful on the merits or otherwise. Any such
determination shall be made (a) by the board of directors by a majority vote
of a quorum consisting of directors who are not or were not parties to the
subject Action or (b) if such quorum is not obtainable, or even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel
(which counsel shall not be the counsel generally employed by the corporation
in connection with its corporate affairs) in a written opinion, or (c) by the
shareholders of the corporation.
Section 6. Effect of Termination of Action. The termination of any
Action by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create either a presumption
that the indemnified Party did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, or with respect to any criminal Action, a presumption that the
Indemnified Party had reasonable cause to believe that his conduct was
unlawful. Entry of a judgment by consent as part of a settlement shall not be
deemed a final adjudication of liability for negligence or misconduct in the
performance of duty, nor of any other issue or matter.
Section 7. Payment in Advance. Expenses (including attorneys' fees) or
some part thereof incurred by an Indemnified Party in defending any Action,
shall be paid by the corporation in advance of the final disposition of such
Action if a determination to make such payment is made on behalf of the
corporation as provided in Section 5 of this Article VI; provided that no
such payment may be made unless the corporation shall have first received a
written undertaking by or on behalf of the Indemnified Party to repay such
amount unless it is ultimately determined that he is entitled to be
indemnified by the corporation as authorized in this Article VI.
Section 8. Other Indemnification Rights. The indemnification provided
by this Article VI shall not be deemed exclusive of any other rights to which
any Indemnified Party or other person may be entitled under the certificate
of incorporation, any agreement, bylaw (including without limitation any
other or further Section or provision of this Article VI), vote of the
shareholders or disinterested directors or otherwise, and any procedure
provided for by any of the foregoing, both as to action in his official
capacity and as to action in another capacity while holding such office.
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Section 9. Period of Indemnification. Any indemnification pursuant to
this Article VI shall continue as to any Indemnified Party who has ceased to
be a director, officer, employee, fiduciary or agent of the corporation or,
at the request of the corporation, was serving as and has since ceased to be
a director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise, including, without
limitation, any employee benefit plan of the corporation for which any such
person served as a trustee, plan administrator or other fiduciary, and shall
inure to the benefit of the heirs and personal representatives of such
Indemnified Party. The repeal or amendment of this Article VI or of any
Section or provision thereof which would have the effect of limiting,
qualifying or restricting any of the powers or rights of indemnification
provided or permitted in this Article VI shall not, solely by reason of such
repeal of amendment, eliminate, restrict or otherwise affect the right or
power of the corporation to indemnify any person, or affect any right of
indemnification of such person, with respect to any acts or omissions which
occurred prior to such repeal or amendment.
Section 10. Insurance. By action of the board of directors,
notwithstanding any interest of the directors in such action, the corporation
may purchase and maintain insurance, in such amounts as the board may deem
appropriate, on behalf of any Indemnified Party against any liability
asserted against him and incurred by him in his capacity of or arising out of
his status as an Indemnified Party, whether or not the corporation would have
the power to indemnify him against such liability under this Article VI, the
certificate of incorporation or applicable provisions of law.
Section 11. Right to Impose Conditions to Indemnification. The
corporation shall have the right to impose, as conditions to any
indemnification provided or permitted in this Article VI, such reasonable
requirements and conditions as to the board of directors or shareholders may
appear appropriate in each specific case and circumstances, including but not
limited to any one or more of the following: (a) that any counsel
representing the person to be indemnified in connection with the defense or
settlement of any Action shall be counsel mutually agreeable to the person to
be indemnified and to the corporation; (b) that the corporation shall have
the right, at its option, to assume and control the defense or settlement of
any claim or proceeding made, initiated or threatened against the person to
be indemnified; and (c) that the corporation shall be subrogated, to the
extent of any payments made by way of indemnification, to all of the
indemnified person's right of recovery, and that the person to be indemnified
shall execute all writings and do everything necessary to assure such
rights of subrogation to the corporation.
ARTICLE VII
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The board of directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidence 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.
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Section 3. Checks and Drafts. 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, savings and loan associations or other
depositories as shall from time to time be designated by resolution of the
board of directors.
ARTICLE VIII
Books and Records
Section 1. Records Kept. The corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of its shareholders and board of directors. The corporation
shall also keep, at its registered office or principal place of business or
at the office of its transfer agent or registrar either within or outside
Delaware, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of the shares held by each. Any books,
records or minutes of the corporation may be in written form or in any form
capable of being converted into written form within a reasonable time.
Section 2. Right to Inspect and Copy. Any person who has been a holder
of record of shares of the corporation or of voting trust certificates
therefor for at least three months immediately preceding his demand or who is
the holder of record of, or the holder of record of voting trust certificates
for, at least five percent of all outstanding shares of the corporation, upon
written demand stating the purpose thereof, shall have the right to examine,
in person or by agent or attorney, at any reasonable time and for any proper
purpose, the corporation's books and records of account, minutes and record
of holders of shares and of voting trust certificates therefor and to make
extracts therefrom.
Section 3. Financial Statements. Upon the written request of any
shareholder of the corporation, the corporation shall mail to the shareholder
its last annual and most recently published financial statements showing in
reasonable detail its assets and liabilities and the results of its
operations.
ARTlCLE IX
Miscellaneous
Section 1. Dividends. Subject to the provisions of the General
Corporation Law of Delaware, the board of directors may from time to time
declare, and the corporation may pay, dividends in cash, property or its own
shares, except when the corporation is unable to pay its debts as they become
due in the usual course of its business, or when the payment thereof would
render the corporation unable to pay its debts as they become due in the
usual course of its business, or when the declaration or payment thereof
would be contrary to any restriction contained in the certificate of
incorporation or these bylaws.
16
<PAGE>
Section 2. Fiscal Year. The fiscal year of the corporation shall be as
established by resolution of the board of directors.
Section 3. Seal. The board of directors shall adopt a corporate seal
which shall be circular in form and shall have inscribed on the periphery the
name of the corporation and the state of incorporation. In the center of the
seal there shall be the word "Seal."
Section 4. Amendment. The board of directors may amend or repeal the
bylaws unless the shareholders, in amending or repealing a particular bylaw,
provide expressly that the directors may not amend or repeal such bylaw. The
shareholders may amend or repeal the bylaws even though the bylaws may also
be amended or repealed by the board of directors. The bylaws may contain any
provision for the regulation and management of the affairs of the corporation
not inconsistent with law or the certificate of incorporation.
KNOW ALL MEN BY THESE PRESENTS, that the foregoing bylaws, consisting of
17 pages, including this page, constitute the bylaws of MTR Gaming Group,
Inc. adopted by the board of directors of the corporation as of January 27,
1998.
/s/ Robert L. Ruben
------------------------------------
Robert L. Ruben, Assistant Secretary
17
<PAGE>
EXHIBIT 3
MTR GAMING GROUP, INC.
State Route 2 South
P.O. Box 356
Chester, West Virginia 26034
Telephone: (304) 387-2400
Facsimile: (304) 387-1598
February 18, 1998
James V. Stanton, Esq.
Stanton & Associates
1310 19th Street, N.W.
Washington, D.C. 20036
Re: Nomination to Board of Directors
Dear Mr. Stanton:
On behalf of MTR Gaming Group, Inc., I am pleased to let you know that the
board of directors has nominated you for membership as an independent member of
the board and the newly formed Audit Committee of the Board.
Your compensation for service on the board will be as follows:
1. Stock Purchase Options. Upon your acceptance of the nomination (the
"Commencement Date"), for each year of service you will receive options to
purchase 25,000 shares of common stock of the company (the "Options"). The
Options will be exercisable for a term of five (5) years from the date of grant.
For the first year of service, the grant date will be the Commencement Date.
The Options will vest and be deemed earned in tranches of 6,250 for each
quarterly board meeting, audit committee meeting, or annual or special meeting
of shareholders that you attend in person (for up to four meetings in any
calendar year). Any Options that have not vested at the end of each calendar
year shall be deemed cancelled.
2. Shareholder Ratification. Pursuant to the new rules for the Nasdaq
Small Cap Market, the Options are subject to shareholder approval. For purposes
of those rules as well as Rule 16b-3(d)(2) of the Securities Exchange Act of
1934, as amended, the company will submit to its shareholders for ratification
at the next annual meeting of shareholders the grant of the Options.
3. Registration. At its sole cost, the company will register the shares
of common stock underlying the Options for public sale by including such shares
in any
<PAGE>
James V. Stanton
February 18, 1998
Page 2
registration statement the company determines to file with the Securities and
Exchange Commission with respect to employee compensation.
4. Recapitalization. If the company declares a forward or reverse
split of its common stock, determines to exchange the common stock of the
company for the equity securities of another issuer, or otherwise undergoes a
recapitalization, then the terms of the Options shall be adjusted or
exchanged equitably.
5. Meeting Fees. For each regular meeting of the board of directors,
audit committee, or shareholders you attend, you will receive a fee of $2,500
and reimbursement of expenses for travel, food, and lodging you incur in
attending such meetings.
6. If these terms are acceptable to you, please sign where indicated
below and return this letter to me, at which time the Commencement Date, as
defined above, will have occurred. We look forward to your joining our
company.
Very truly yours,
/s/ Edson R. Arneault
----------------------------
Edson R. Arneault, President
ACCEPTED:
/s/ James V.Stanton
- -------------------------
James V. Stanton, Esquire
<PAGE>
EXHIBIT 4
MTR GAMING GROUP, INC.
State Route 2 South
P.O. Box 356
Chester, West Virginia 26034
Telephone: (304) 387-2400
Facsimile: (304) 387-1598
February 18, 1998
William D. Fugazy, Jr.
140 East 45th Street, Suite 4000
New York, New York 10017
Re: Nomination to Board of Directors
Dear Mr. Fugazy:
On behalf of MTR Gaming Group, Inc., I am pleased to let you know that the
board of directors has nominated you for membership as an independent member of
the board and the newly formed Audit Committee of the Board.
Your compensation for service on the board will be as follows:
1. Stock Purchase Options. Upon your acceptance of the nomination (the
"Commencement Date"), for each year of service you will receive options to
purchase 25,000 shares of common stock of the company (the "Options"). The
Options will be exercisable for a term of five (5) years from the date of grant.
For the first year of service, the grant date will be the Commencement Date.
The Options will vest and be deemed earned in tranches of 6,250 for each
quarterly board meeting, audit committee meeting, or annual or special meeting
of shareholders that you attend in person (for up to four meetings in any
calendar year). Any Options that have not vested at the end of each calendar
year shall be deemed cancelled.
2. Shareholder Ratification. Pursuant to the new rules for the Nasdaq
Small Cap Market, the Options are subject to shareholder approval. For purposes
of those rules as well as Rule 16b-3(d)(2) of the Securities Exchange Act of
1934, as amended, the company will submit to its shareholders for ratification
at the next annual meeting of shareholders the grant of the Options.
3. Registration. At its sole cost, the company will register the
shares of common stock underlying the Options for public sale by including
such shares in any registration statement the company determines to file with
the Securities and Exchange Commission with respect to employee compensation.
<PAGE>
William D. Fugazy, Jr.
February 18, 1998
Page 2
4. Recapitalization. If the company declares a forward or reverse split
of its common stock, determines to exchange the common stock of the company for
the equity securities of another issuer, or otherwise undergoes a
recapitalization, then the terms of the Options shall be adjusted or exchanged
equitably.
5. Meeting Fees. For each regular meeting of the board of directors,
audit committee, or shareholders you attend, you will receive a fee of $2,500
and reimbursement of expenses for travel, food, and lodging you incur in
attending such meetings.
If these terms are acceptable to you, please sign where indicated
below and return this letter to me, at which time the Commencement Date, as
defined above, will have occurred. We look forward to your joining our company.
Very truly yours,
/s/ Edson R. Arneault
----------------------------
Edson R. Arneault, President
ACCEPTED:
/s/ William D. Fugazy, Jr.
- --------------------------
William D. Fugazy, Jr.
<PAGE>
EXHIBIT 5
AMENDMENT OF EMPLOYMENT AGREEMENT
This AMENDMENT OF EMPLOYMENT AGREEMENT, made effective this 16th day of
February, 1998, by and between MTR Gaming Group, Inc. ("MTR" or the
"Company"), on the one hand, and Thomas K. Russell, on the other hand, is an
amendment of an Employment Agreement dated May 10, 1994 (the
"EmploymentAgreement).
WHEREAS, Russell is presently employed by MTR pursuant to the Employment
Agreement and holds various directorships and offices with the Company and
various of its affiliates; and
WHEREAS, Russell's personal circumstances require him to reduce his time
commitment to the Company and the Company desires to accommodate Russell's
needs:
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties to this Amendment Of Employment Agreement, meaning to be
bound, do hereby agree as follows:
1. Amendment of Agreement. As of the date of execution of this
Amendment Of Employment Agreement (the "Effective Date"), the terms of
Russell's employment by the Company shall be governed by this Amendment Of
Employment Agreement. As of the Effective Date, none of the parties shall
have any further rights or obligations under the Employment Agreement.
2. Resignation From All Directorships and Offices. Russell hereby
resigns from all of the directorships and offices that he currently holds
with the Company and its corporate affiliates (Mountaineer Park, Inc.,
Mountaineer Magic, Inc., ExCal Energy Corporation, Crystal Exploration Co.,
Inc., and Golden Palace Casinos, Inc.) (referred to herein collectively as
the "Companies"). Russell also hereby resigns from membership on any
committees of the Companies.
3. Liability Insurance. In the event that (i) the Company maintains
liability insurance on behalf of its officers and directors; and (ii) the
provider of such insurance provides coverage for former officers and
directors without additional premium (as is the case with the director's and
officer's insurance currently carried by the Company), then the Company
shall include Russell in such insurance. Russell acknowledges that the
Company provides no guarantee that it will in the future be able to obtain
such insurance on acceptable terms, or at all, or that the Company will
choose to carry such insurance.
4. Consideration. In consideration of Russell's resignations as set
forth in Section 2 above, and his other agreements contained herein, and
subject to the terms and conditions of this Agreement, the Companies shall,
upon the execution and delivery of this Agreement, pay Russell the sum of
$99,676.94, offset by any advances or payroll received by Russell from the
Company subsequent to December 31, 1997. In addition, Russell shall be
entitled to receive from the Companies and to retain as his property, at book
value, the furniture and office equipment listed on
<PAGE>
Schedule 1 appended hereto.
5. Release and Indemnification.
(a) Release. Except for the obligations expressly provided herein,
and except as expressly limited below, Russell on the one hand, and the
Companies on the other hand, hereby release and discharge each other and
their respective predecessors, successors, assigns, employees, shareholders,
officers, directors, agents, attorneys, representatives, affiliates,
accountants, insurers, and heirs from and against any and all claims,
demands, causes of action, charges of wrongful termination, judgments,
awards, obligations, damages, attorney's fees, liabilities, costs, and
expenses whatsoever, whether known or unknown, suspected or unsuspected,
fixed or contingent, apparent or concealed, which the parties ever had, now
have, or may in the future claim to have against the released parties
(whether directly or indirectly), or any of them, by reason of any act,
omission, obligation, matter, cause, or thing occurring on or prior to the
Effective Date, including but not limited to any claim arising out of or
relating to Russell's employment by the Companies pursuant to the Employment
Agreement, or otherwise. However, this release does not apply to any claim
that any of the Companies ever had, now has, or may in the future claim to
have by reason of Russell's (i) fraud; (ii) embezzlement or misappropriation
of funds or property of any of the Companies; (iii) breach of the common law
duty of loyalty; or (iv) intentional or willful misconduct; the Company
reserves the right to assert claims based on or arising out of such conduct.
The parties acknowledge that they are aware of Section 1542 of the
California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
To the fullest extent permitted by law, each of the parties expressly
waives this section and the benefits thereof and of any similar law or rule.
(b) Indemnification. To the fullest extent permitted by law, MTR
shall indemnify and save and hold harmless Russell from and against any and
all claims, demands, liabilities, costs, and expenses, including judgments,
fines, or amounts paid on account (whether in settlement or otherwise), and
reasonable expenses, including attorney's fees actually and reasonably
incurred, to the extent that Russell is made a party to any action, suit or
proceeding or if a claim or liability is asserted against Russell (whether or
not in the right of any of the Companies), by reason of the fact that he was
or is an officer or director, or active in such capacity on behalf of any of
the Companies or any predecessor or successor thereof whether or not the same
shall proceed to judgment or be settled or otherwise brought to a
conclusion. However, the Companies shall not have any obligation under this
provision if the claim asserted against Russell is based on or arises
2
<PAGE>
out of any or all of the following: (i) conduct of Russell that was not in
the course and scope of his employment; (ii) Russell's bad faith conduct;
(iii) conduct of Russell that was not reasonably in the best interests of the
Companies; or (iv) Russell's intentional or willful misconduct. Furthermore,
to the fullest extent permitted by law, Russell shall indemnify ad save and
hold harmless the companies from and against any and all claims, demands,
liability, costs ad expenses, including judgments, fines or amounts paid on
account (whether in settlement or otherwise), and reasonable expenses
including attorneys' fees actually and treasonably incurred, to the extent
that any of the Companies is made a party to any action, suit or proceeding
or if any claim of liability is asserted against any of the Companies
(whether or not the same shall proceed to judgment or be settled or otherwise
brought to a conclusion), based on or arising out of any or all of the
following: (i) conduct of Russell that was not in the course ad scope of his
employment; (ii) Russell's bad faith conduct; (iii) conduct of Russell that
was not reasonably in the best interest of the Companies; or (iv) Russell's
intentional or willful misconduct.
6. Appointment as Assistant to the President. From and after the
Effective Date, Russell shall be employed by the Company as an Assistant to
the President pursuant to the terms and conditions set forth below:
(a) Term. This Amendment Of Employment Agreement shall be in
effect for a term of twenty months, commencing on January 1, 1998 and
terminating September 15, 1999 (the "Termination Date").
(b) Responsibilities. During the term of this Amendment Of
Employment Agreement, Russell shall perform such tasks as shall be assigned
to him from time to time, at reasonable times and upon reasonable notice, by
the President of the Company. Russell will not be expected to devote more
than fifteen (15) hours per month to the business of the Companies.
(c) Salary. The Company shall pay Russell a salary of $1,000 per
month.
(d) Medical Insurance. Through the Termination Date, and to the
extent such insurance remains available to Russell, the Company shall provide
to Russell the medical insurance that Russell was receiving from the Company
as of the day prior to the Effective Date; provided, however, that (i) the
Company shall not under any circumstances itself become Russell's insurer;
and (ii) the Company's sole obligation pursuant to this Section 3(d) shall be
limited to the amount of the premium being charged for Russell's medical
insurance as of the day prior to the Effective Date plus 20%.
(e) Termination.
For Cause. In the event Russell's employment under this Amendment Of
Employment Agreement is terminated by the Company for cause, the Company
shall have no further obligations or duties under this Agreement, except for
obligations accrued at the date of termination. The term "Cause" shall mean
(i) conviction of a felony, (ii) embezzlement or misappropriation of funds or
3
<PAGE>
property of the Company or any of its affiliates, (iii) consistent refusal to
substantially perform, or willful misconduct in the substantial performance
of, his duties and obligations hereunder; (iv) engaging in activity that the
Board of Directors determines in its reasonable judgment would result in the
suspension or revocation of any video lottery, parimutuel, or other gaming
license or permit held by the Company or any of its subsidiaries; or (v)
breach of the duty of confidentiality or duty of loyalty as described in
Paragraphs 7 and 8 hereof. In addition, Russell's employment shall cease and
terminate for cause upon either (i) Russell's death; (ii) Russell's
resignation.
(2) Without Cause. The Company may terminate Russell's
employment without cause on three (3) business days' notice; provided,
however, that in the event of such termination without cause, MTR shall (i)
within ten (10) business days thereafter pay Russell all amounts that would
otherwise become due as of the Termination Date; and (ii) nevertheless
provide Russell medical insurance through the Termination Date.
(f) Expenses. All travel and other expenses incident to the
rendering of services by Russell hereunder shall be paid by the Company. If
any such expenses are paid in the first instance by Russell, the Company
shall reimburse him therefor on presentation of the appropriate documentation
required by the Internal Revenue Code of 1986, as amended (the "Code"), or
Treasury Regulations promulgated thereunder, or otherwise required under the
Company's policy with respect to such expenses. The Company recognizes that
Russell resides in California and may be required from time to time to travel
outside that area. Reimbursement of any expense incurred by Russell in
excess of $1,000 in a calendar month shall be conditioned on prior approval
of the president of the Company.
(g) Cooperation in Litigation; Right to Counsel. To the extent
the Company requires Russell's services as consultant or witness in
connection with litigation in which the Company may be involved or have an
interest, and litigation involving the business of the Company in which
Russell may be a named party, Russell shall cooperate with the Company and
its counsel in the handling of such litigation. In any such litigation in
which Russell is a named party, the Company will provide Russell a defense by
counsel reasonably acceptable to the Company. In the case styled Mountaineer
Park, Inc. v. Manypenny, Russell acknowledges that separate counsel is not
necessary and expressly consents to his continued representation by
Mountaineer Park, Inc.'s in-house legal counsel.
7. Non-Disclosure.
Non-Disclosure. Russell acknowledges that by virtue of his
positions with the Companies he has acquired trade secrets and confidential
and proprietary information concerning the Companies' plans, strategies,
operations, finances, costs, programs, ideas, approaches, practices and
inventions (the "Proprietary Information"). Russell agrees to hold all such
Proprietary Information in confidence and not to directly or indirectly
disclose, use or publish and Proprietary information without the Companies'
prior consent. Russell agrees to return to the Companies all tangible
manifestations of Proprietary Information (and all copies thereof) within
sixty (60) days following
4
<PAGE>
the Effective Date. Notwithstanding the foregoing, Russell will not be
liable for the disclosure of any Proprietary Information if such Proprietary
Information: (i) is now, or through no default on the part of Russell
hereafter becomes, generally known to the public, or (ii) is disclosed by
Russell pursuant to a court order or any law, rule or regulation. If Russell
believes that he is required to disclose any Proprietary Information pursuant
to a court order of laws, rules or regulations, he shall provide reasonable
notice to the Companies of his intention to do so. Any Proprietary
Information created, developed, obtained or conceived by Russell prior to the
Effective Date shall be owned by and belong exclusively to the Companies. By
the Effective Date, Russell shall, without additional compensation, disclose
to the Companies all Proprietary Information that he has created, developed,
obtained or conceived. Russell shall execute and deliver to the Companies
without additional compensation, such documents as the Companies may
reasonably require from time to time to evidence their ownership of any such
items. The obligations under this Section 7(a) shall expire on the fifth
(5th) anniversary of the Effective Date.
(b) Injunctive Relief. Russell agrees that the remedy at law for
any breach by him of this Section 7 will be inadequate and that the Companies
will be entitled to injunctive relief in addition to all other available
remedies.
(c) Trade Secrets Act. Nothing in this Amendment Of Employment
Agreement is intended to limit any remedies that the Companies may have under
the Uniform Trade Secrets Act (California Civil Code Section 3426), or
otherwise available under law.
8. Confidentiality. The parties agree that this Amendment Of
Employment Agreement and the terms thereof are strictly confidential and that
they will not disclose or publish this Amendment Of Employment Agreement or
any of its terms to any other person or entity (other that their own
attorneys, accountants or staff on a need-to-know basis) without the other
parties' express written consent, except pursuant to a court order or any
law, rule or regulation. If one of the parties believes that he or it is
required to disclose this Amendment Of Employment Agreement or any of its
terms pursuant to a court order or any law, rule of regulation, he or it
shall provide reasonable notice to the other party of his or its intention to
do so. Provided, however, that Russell hereby consents to the publication of
a description of the Amendment Of Employment Agreement in its periodic
filings with the U. S. Securities & Exchange Commission and including a copy
of this Amendment Of Employment Agreement as an exhibit thereto. Further,
Russell hereby acknowledges that his resignations referred to in Paragraph 2
of this Amendment Of Employment Agreement are not the result of any
disagreement with the Company on any matter relating to its operations,
policies, practices or procedures within the meaning of Item 6 of Form 8-K.
9. Obligations Conditioned on Parties' Performance. Each of Russell
and the Companies agrees that all of their respective obligations under this
Amendment Of Employment Agreement are expressly conditioned on the compliance
by the other party with its obligations under this Amendment Of Employment
Agreement and that in the event of any material breach by Russell, on the one
hand, or the Companies on the other hand, the other party hereto shall have
no further obligations under this Employment Agreement.
5
<PAGE>
10. Careful Consideration And Revocation. Russell hereby
acknowledges that he has had twenty-one (21) days to consider this Amendment
Of Employment Agreement carefully before executing it and that he executes it
freely after consultation with counsel of his own choice. Russell further
acknowledges that he understands that he has seven (7) calendar days
(beginning on January 1, 1998) to revoke this Amendment Of Employment
Agreement by delivering notice of revocation to the Company pursuant to
Paragraph 11, infra, and further acknowledges that the payment made pursuant
to Paragraph 4, supra, must be returned to the Company along with his notice
of revocation.
11. General. This Amendment Of Employment Agreement is further
governed by the following provisions:
(a) Notices. Any notice or other communication required or
permitted to be given hereunder shall be made in writing and shall be
delivered in person, by facsimile transmission, by overnight delivery service
or mailed by prepaid registered of certified mail, return receipt requested,
addressed to the parties at the addresses stated below or such other
addresses as the parties may designate by notice in the manner set forth
herein. Such notices of communications shall be effective upon delivery if
delivered in person or by facsimile, on the next business day if sent by
overnight delivery service, and either upon actual receipt or three (3) days
after mailing, whichever is earlier, if delivered by mail.
If to the Companies: MTR Gaming Group, Inc.
Attention: Edson R. Arneault
Route 2 South
Chester, West Virginia 26034
If to Thomas K. Russell: 32 Antibes
Laguna Niguel, California 92677
(b) Parties in Interest. This Amendment Of Employment Agreement
shall be binding upon and inure to the benefit of Russell and his successors,
administrators, assigns, heirs and executors, and it shall be binding upon
and inure to the benefit of the Companies and any corporation succeeding to
all of substantially all of the business and assets of the Company by merger,
consolidation, purchase of assets or otherwise.
(c) Arbitration. Any disputes between the parties, including but
not limited to any dispute concerning the validity of this Amendment Of
Employment Agreement or the interpretation or breach of any of its term,
shall be settled by arbitration between the parties in
6
<PAGE>
Orange County, California in a proceeding held under the rules of the
American Arbitration Association. In such proceeding, each party shall
choose one arbitrator and the two so chosen shall choose a third arbitrator.
The vote of two of the arbitrators shall be sufficient to determine the
award. However, Russell agrees that the Companies may seek interim relief
(temporary restraining order, preliminary injunction, etc.) in any court of
competent jurisdiction with respect to any breach or alleged breach by
Russell of Section 7 of the Agreement
(d) Entire Agreement. This Amendment Of Employment Agreement
supersedes any and all other agreements, either oral, written or implied,
between the parties hereto including but not limited to the May 10, 1994
Employment Agreement, and contains all of the covenants and agreements
between the parties with respect to their relationship in any manner
whatsoever. Any modification of this Amendment Of Employment Agreement will
be effective only if it is in writing signed by each of the parties hereto.
(e) Governing Law. This Amendment Of Employment Agreement shall
be governed by and construed in accordance with the laws of the State of
California.
(f) Severability. In the event that any term or condition
contained in this Amendment Of Employment Agreement shall for any reason be
held by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other term or condition of this Amendment Of Employment
Agreement, but this Amendment Of Employment Agreement shall be construed as
if such invalid or illegal or unenforceable term or condition had never been
contained herein.
(g) Legal Advice. Russell acknowledges that the Companies have
encouraged him to obtain independent legal advice concerning this Amendment
Of Employment Agreement.
(h) Counterparts. This Amendment Of Employment Agreement may be
executed in any number of counterparts, each of which shall constitute an
original of this Amendment Of Employment Agreement, and all of which together
constitute one and the same agreement.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment Of
Employment Agreement as of the day and year first above written.
MTR GAMING GROUP, INC. EXCAL ENERGY CORPORATION
By: /s/ Edson R. Arneault By: /s/ Edson R. Arneault
-------------------------- --------------------------------
Edson R. Arneault, President Edson R. Arneault, President
MOUNTAINEER PARK, INC. MOUNTAINEER MAGIC, INC.
By: /s/ Edson R. Arneault By: /s/ Edson R. Arneault
- -------------------------- --------------------------------
Edson R. Arneault, President Edson R. Arneault, President
THOMAS K. RUSSELL GOLDEN PALACE CASINOS, INC.
By: /s/ Thomas K. Russell By: /s/ Edson R. Arneault
- -------------------------- --------------------------------
Thomas K. Russell Edson R. Arneault, President
8
<PAGE>
EXHIBIT 6
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made and entered into this 12th
day of February, 1998, by and between Mountaineer Park, Inc. a West Virginia
corporation ("Purchaser"), and Realm, Inc. and Ohio corporation (" Seller").
RECITALS
The Seller is a party to that certain Real Estate Sales Contract with
Brohha Land Company dated as of January 9, 1998, for the purchase of the
Property, as defined below.
Purchaser has previously loaned to Seller the amount of $240,000 for the
purpose of facilitating the purchase by Seller of the Property (the "Loan").
The Seller purchased, in fee simple, certain improved real property
located in Chester, Hancock County, West Virginia from the Brohha Land
Company on February 12, 1998.
The Seller and the Purchaser desire to enter into this Agreement to set
forth the terms and conditions upon which the Seller will sell and the
Purchaser will acquire such property.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
(a) For all purposes of this Agreement, the following terms shall have
the respective meanings set forth below:
"Building" means any and all other buildings, structures and other
improvements located on the Land.
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banks are authorized or required to close under the laws
of the State in which the Property is located.
"Closing" shall mean the closing of the purchase and sale of the
Property in accordance with Section 7 hereof.
"Closing Date" shall mean the date of Closing provided for in Section 7.
"Contracts" means all contracts, agreements and obligations currently in
force relating to the Property, including, without limitation, all sale,
management, construction, leasing, insurance, commission, architectural,
engineering, operating, employment, service, supply and maintenance
agreements.
<PAGE>
"Effective Date" means the date on which both Seller and Purchaser have
executed this Agreement.
"Existing Exceptions" means a lien against the Property for real estate
taxes not yet due and payable and those other matters affecting title to the
Property as are set forth on Exhibit B attached hereto.
"Federal Tax Law" means the Federal Foreign Investment in Real Property
Tax Act of 1980 and the 1986 Tax Reform Act, as amended.
"Governmental Authorities" shall mean any governmental or
quasi-governmental body or agency having jurisdiction over the Property
and/or the Seller, including, without limitation, the State of West Virginia
and Hancock County.
"Governmental Regulation" shall mean any laws, ordinances, rules,
requirements, resolutions, policy statements and regulations (including,
without limitation, those relating to land use, subdivision, zoning,
environmental, toxic or hazardous waste, occupational health and safety,
water, earthquake hazard reduction, and building and fire codes) of the
Governmental Authorities bearing on the construction, alteration,
rehabilitation, maintenance, use, operation or sale of the Property.
"Hazardous Materials" means toxic materials, hazardous waste, hazardous
substances [as these terms are defined in the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. 6901, et seq.), in the Hazardous
Materials Transportation Act, 49 U.S.C. 1802 and/or in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended
(42 U.S.C. 9601, et seq.)], asbestos or asbestos-related products, oils,
petroleum-derived compounds, radon, PCB'S, gas or oil storage tanks, or other
hazardous materials or pesticides as from time to time identified in any laws
ore regulations from time to time applicable to the Property.
"Insurance Company" shall mean the Title Insurance Company selected by
the Purchaser.
"Land" means that certain (i) approximate 350.19 acres of real property
owned by Seller (the "Real Property") located in the Hancock County, West
Virginia more fully described in Exhibit A, attached hereto and incorporated
herein, purchased by Logan from Brohha Land, Co, as seller, on or about
February ___ 1998, including (i) all right, title and interest of the Seller
in and to any easements, covenants and other rights' appurtenant to such Land
and (ii) all right, title and interest of the Seller in and to any land lying
in the bed of any existing dedicated street, road, avenue or alley, open or
closed, in front of or adjoining such land.
"Leases" means all leases or other agreements permitting the use or
occupancy of space on, under, over or about the Property, including all
amendments and exhibits thereto and assignments thereof.
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"Permits" means all evidence in the possession of Seller that the
present structure, use, operation and maintenance of the Property is
authorized by, and in compliance with, Governmental Regulations including,
but not limited to, true and correct legible copies of any or all
certificates of occupancy (or the equivalent), any or all permits, licenses
and other authorizations issued with respect to the Property.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
limited liability company, limited liability partnership, governmental
authority, or other entity of whatever nature.
"Personal Property" means all personal property owned or used by Seller
in connection with the operation or maintenance of the Building.
"Property" means the Land, the Buildings, the Personal Property and all
utility and other intangibles relating to the ownership and operation of the
Property.
"Studies" means title examinations; surveys; architecture, financial,
financing, economic, marketing, engineering, and other tests, including test
borings, inspections, investigations, reviews, and/or other similar studies.
"Tenant" means any Person entitled to occupy or use any portion of the
Property pursuant to a Lease.
"Title Insurance Company" means the law firm of Geiger, Teeple, Smith &
Hahn, 260 East Main Street, Alliance, Ohio 44601.
(b) Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and
vice versa.
2. Purchase and Sale of Property
(a) On the Closing Date, and subject to the terms and conditions of
this Agreement, the Seller agrees to sell and convey, and the Purchaser
agrees to acquire, 100% of the fee simple ownership of the Property. Title
to the Property shall be free and clear of all liens, encumbrances,
easements, covenants, conditions and other matters affecting title, except as
set forth in the Survey attached hereto and incorporated herein as Exhibit B
and shall be good of record and in fact merchantable and insurable at
standard rates.
(b) The Seller agrees that it will, at any time and from time-to-time
after the Closing Date, upon request of the Purchaser, do, execute,
acknowledge or deliver, all such further acts, deeds, assignments,
conveyances and assurances as may reasonably be required for the better
conveying, transferring, assigning, assuring and confirming the Property to
the Purchaser.
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3. Purchase Price and Terms of Payment
(a) The Purchase Price shall be $240,000.00. The Purchase Price shall
be payable by a forgiveness by Purchaser of the Loan owed by Seller to
Purchaser at settlement on the sale of the Real Property.
(b) On the Closing Date, all amounts set forth on the Settlement
Statement shall be disbursed in accordance with the joint instructions of the
Purchaser and the Seller.
4. Representations and Warranties of the Seller
The Seller represents and warrants to the Purchaser as follows:
(a) Seller is the record owner of fee simple title to the Property.
(b) Seller has not made, and prior to the Closing will not make, any
commitments to any Governmental Authorities, utility company, school board,
church or other religious body, or any homeowner or homeowners' association,
or to any other organization, group or individual, relating to the Property
which would impose any obligation on the Purchaser, or its successors or
assigns, after the Closing to make any contributions of money, dedications of
land or grant of easements or right-of-way, or to construct, install or
maintain any improvements of a public or private nature on or off the
Property.
(c) Seller has not received any notice that there are any wetlands of
any nature located on the Property and, to the best of its knowledge, there
are none.
(d) Seller has not received any notice that there are any special
assessments pending, noted or levied against the Property, and, to the best
of its knowledge, there are none, nor is there any proposed increase in the
assessed value of the Property.
(e) Except as set forth in that certain Phase I Environmental
Assessment of Blake & August Environmental, Inc. dated February 6, 1998, no
Hazardous Materials are located on or in the Property, including the surface,
soil or subsurface of the Property. Seller has received no notice that
Hazardous Materials contaminate or otherwise affect the Property; and to its
best knowledge, no Hazardous Materials are present on any adjacent property.
The Property has not been previously used for the storage, manufacture,
repair or disposal of Hazardous Materials, or machinery containing such
Hazardous Materials. No complaint, order, citation or notice with regard to
air emissions, water discharges, noise emissions, Hazardous Materials, or any
other environmental, health, or safety matters affecting the Property, or any
portion thereof, from any person, government or entity, has been received by
Seller. All federal, state and local environmental laws and regulations
affecting the Property and Hazardous Materials have been fully complied with,
and no heating equipment, incinerator or other burning equipment installed or
located in or on the Property violates any law, ordinance, order or
regulation of any Governmental Authority.
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(f) Seller is a "United States person" within the meaning of Sections
1445(f)(3) and 7701(a)(3) of the Internal Revenue Code of 1986, as amended.
(g) No attachment, execution proceedings, assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization, or other proceedings
are pending or threatened against Seller or its general partner(s),
collectively or individually.
(h) Seller has paid or caused to be paid all real estate taxes, income
taxes, special assessments and other taxes, that are due on or before the
Closing Date and, if not paid, could result in a lien or charge against the
Property and/or the Seller.
(i) Seller has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein and to consummate the
transactions contemplated hereby.
(j) This Agreement and all documents required hereby to be executed by
Seller are and shall be valid, legal, binding obligations of, and enforceable
against, Seller in accordance with their terms, subject only to applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws, or
equitable principles affecting or limiting the rights of contracting parties
generally.
(k) Neither the execution and delivery of this Agreement and the
documents referenced herein nor the consummation of the transactions
contemplated herein nor compliance with the terms of this Agreement and the
documents referenced herein conflict or result in the material breach of any
terms, conditions or provisions of, or constitute a default under, any bond,
note or other evidence of indebtedness or any contract, indenture, mortgage,
deed of trust, loan, partnership agreement, lease or other agreements or
instruments to which Seller or any of its partners is a party or affecting
the Property or by which Seller or any of its partners may be bound.
(l) Seller is neither insolvent nor the debtor in any bankruptcy,
receivership or similar proceeding; and no party of the Property is currently
subject to the jurisdiction or supervision of any court in any such
proceeding.
5. Additional Undertakings of the Seller
Seller shall perform the following undertakings:
(a) On the Closing Date, Seller shall execute, acknowledge and deliver
to the Purchaser a good and sufficient general warranty deed in proper form
for recording, conveying fee simple absolute to the Real Property to the
Purchaser or Purchaser's designee, free and clear of all liens, leases
encumbrances, covenants, conditions and other matters affecting title, and,
as required by Purchaser, assignments of and/or bills of sale for each of the
foregoing (including appropriate indemnification).
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(b) The Seller shall give possession and occupancy of the Property to
the Purchaser on the Closing Date and in the event the Seller shall fail to
do so and Purchaser nonetheless elects in its sole discretion to purchase the
Property, the Seller shall become and thereafter be a tenant by sufferance of
the Purchaser.
(c) If requested to do so by the Purchaser, on the Closing Date the
Seller shall execute and deliver to the purchaser, or any title insurance
company designated by it, an owner's Affidavit, in the customary form, with
respect to the absence of claims which would give rise to mechanics' liens
and the absence of parties in possession of the Property other than the
Seller and Tenants pursuant to the terms of Leases or shall provide such
other assurances as shall be required to enable Purchaser to obtain the title
insurance policy to be issued pursuant to the title commitment referred to in
Section 6(b).
6. Conditions Precedent to the Obligations of the Purchaser
The obligation of the Purchaser to purchase the Property shall be
subject to the following conditions (all or any of which may be waived, in
whole or in part, by the Purchaser):
(a) The representations and warranties made by the Seller in Section 5
shall be true and correct in all material respects on and as of the Closing
Date.
(b) On the Closing Date, (i) the Seller's title to the Property shall
be marketable, good of record and in fact, and free-and-clear of all liens,
mortgages, deeds of trust, encumbrances, easements, leases, conditions and
other matters affecting title other than as set forth on the Survey, and (ii)
Purchaser's Title Insurance Company shall have committed unconditionally to
issue to the Purchaser or its designee, at standard rates, an ALTA Form B
owner's title insurance policy covering the Property, including such
endorsements as Purchaser may reasonably require, in an amount at least equal
to the Purchase Price, insuring title to the Property in the condition
required by clause (i) of this paragraph.
7. Closing
(a) The Closing shall take place on February ____ 1998. Closing shall
take place at the office of the Title Company or at such other location in
the Chester, West Virginia area as Purchaser and Seller shall designate
jointly. The Insurance Company shall conduct the Closing.
(b) The delivery to the Insurance Company of the Purchase Price, the
executed deed of conveyance, assignments of the Leases and Security Deposits
and all other documents and instruments required to be delivered by either
party to the other by the terms of this Agreement shall be deemed to be a
good and sufficient tender of performance of the terms hereof.
(c) The following items of income and expense shall be adjusted as of
11:59 p.m. on the day prior to the Closing Date.
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(i) Real estate and personal property taxes with respect to the
Property. (Assessments, if any, for improvements completed prior to the
Closing Date, whether assessment therefor has been levied or not, shall be
adjusted as of the Closing Date and thereafter assumed by the Purchaser.)
(ii) Fuel, water and sewer service charges and charges for oil,
electricity, telephone and all other public utilities.
(iii) Rental and all other income (including common area
charges and other "pass-throughs") received from Tenants.
(iv) All charges payable pursuant to the Contracts.
If meters measure the consumption of water, gas and/or electric current
at the Property by the Seller (as opposed to by Tenants), Seller shall cause
such meters to be read on the day prior to the Closing Date and shall pay all
utility bills resulting therefrom promptly upon receipt thereof.
8. Termination
(a) If (i) any of the representations and warranties made by the Seller
in Section 4 shall be materially inaccurate or incorrect, (ii) the Seller
shall fail to perform any of the covenants or agreements to be performed by
the Seller under this Agreement, or (iii) the Purchaser shall be relieved of
its obligation to purchase the Property by operation of Section 6, then, in
any such event, the Purchaser, in its sole and absolute discretion, shall
have the right either (A) to extend the Closing Date for a sufficient period
to allow Seller to satisfy conditions specified in Section 6; (B) to
terminate this Agreement by giving written notice to the Seller; or (C) in
lieu of terminating this Agreement, to seek specific performance of this
Agreement. In the event of (A) - (C) above, Purchaser reserves all rights it
may have to seek damages incurred by it, specifically including but not
limited to a refund to Purchaser of all costs incurred in connection with
the third party Studies. Further, in the event Seller refuses or fails to
deliver title to the Property as aforesaid, then Purchaser shall not be
obligated to forgive the Loan and shall at its sole option be permitted to
elect an offset against the Purchase Price of that additional 350 acre tract
which Seller and Realm Incorporated have previously granted Purchaser an
option to purchase.
9. Brokers
Seller and Purchaser each represent and warrant to the other than no
broker has been involved in this transaction on behalf of Seller or
Purchaser, respectively. Seller and Purchaser shall indemnify and hold the
other, its partners, agents and employees, harmless against any and all
claims, damages and expenses, including reasonable attorneys fees, incurred
by the other party due to a claim by any other broker or agent alleging to be
entitled to a fee or commission
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due to work on this transaction on behalf of Seller or Purchaser, respectively.
10. Foreign Person
If Seller is not a "foreign person," as defined in the Federal Tax Law,
then at the Closing, Seller will deliver to Purchaser a certificate so
stating, in a form complying with the Federal Tax Law. If Seller is a
"foreign person" or if Seller fails to deliver the required certificate at
the Closing, then in either such event the funding to Seller at the Closing
will be adjusted-to the extent required to comply with the withholding
provisions of the Federal Tax Law; and although the amount withheld will
still be paid at the Closing by Purchaser, it will be retained by the Title
Company for delivery to the Internal Revenue Service, together with the
appropriate Federal Tax Law forwarding forms (and with copies being provided
both to Seller and to Purchaser).
11. Entire Agreement
No change or modification of this Agreement shall be valid unless the
same is in writing and signed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be valid unless in writing and signed by
the party against whom it is sought to be enforced. This Agreement contains
the entire agreement between the parties relating to the purchase and sale of
the Property, all prior negotiations between the parties are merged in this
Agreement and there are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between
them other than as set forth in this Agreement.
12. Survival of Representations, Warranties and Agreements
The representations, warranties, covenants, agreements and indemnities
set forth in or made pursuant to this Agreement shall remain operative and
shall survive the Closing under this Agreement and the execution and delivery
of the deed and other conveyance documents hereunder and shall not be merged
therein, regardless of any investigation made by or on behalf of any party.
13. Benefit and Burden
The Seller may not assign its rights and obligations under this
Agreement prior to the Closing Date without first obtaining the prior written
consent of the Purchaser. All terms of this Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective legal
representatives, successors and assigns. If the Purchaser assigns its rights
under this Agreement, the Purchaser shall promptly deliver an executed copy
of the instrument of assignment to the Seller.
14. Risk of Loss
Except as otherwise expressly provided in Section 9 above, the risk of
loss or damage to the property by fire or other casualty is assumed by Seller
until recordation of the deed of
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conveyance to Purchaser.
15. Governing Law
This Agreement concerns property located in the State of West Virginia,
and shall be construed and enforced in accordance with the laws of the State
of West Virginia.
16. Notices
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally or if deposited in the United States mail, properly addressed and
postage prepaid or if delivered to Federal Express or other recognized
overnight delivery service, (i) if to the Seller, Route 2, Box 386, Chester,
West Virginia 26034 with a copy to ; (ii)
if to the Purchaser, Mountaineer Park, Inc., Route 2 , Box 358, Chester, West
Virginia 26034, Attn. Edson R. Arneault with a copy to Ruben & Aronson, LLP,
1101 30th Street, N.W., Suite 500, Washington, D.C. 20007, Attn.: Louis M.
Aronson; or (iii) at such other address as may be given by either party to
the other party by notice in writing pursuant to provisions of this Section.
17. Counterparts
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
18. Miscellaneous
(a) If the date on which either the Purchaser or the Seller is required
to take action under this Agreement is not a Business Day, the action shall
be taken on the next succeeding Business Day.
(b) The captions of the various sections and paragraphs of this
Agreement have been inserted only for the purpose of convenience; such
captions are not a part of this Agreement and shall not be deemed in any
manner to modify, explain, enlarge or restrict any of the provisions of this
Agreement.
(c) Seller and Purchaser agree that the proposed terms and conditions,
and all information (other than information which is a matter of public
record or is provided by other sources readily available to the public)
shared or developed in the context of this transaction shall be kept strictly
confidential.
IN WITNESS WHEREOF, the Purchaser and the Seller have signed this
Agreement on the day and year first above written.
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PURCHASER:
MOUNTAINEER PARK, Inc.
By: /s/ Edson R. Arneault
------------------------------
Its: President
-----------------------------
SELLER:
REALM, INC.
/s/ Robert C. Logan
---------------------------------
By: Robert C. Logan
Its: President
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EXHIBIT 7
DEED
THIS DEED made this 13th day of February, 1998, by and between REALM, INC.,
an Ohio corporation, party of the first part, GRANTOR, and MOUNTAINEER PARK,
INC., a West Virginia corporation, party of the second part, GRANTEE;
WITNESSETH: That for and in consideration of the sum of One Dollar
($1.00), and other valuable consideration, the receipt of which is hereby duly
acknowledged, the said parties of the first part do hereby grant and convey,
with covenants of GENERAL WARRANTY, unto the said parties of the second part all
their right, title, and interest, in and to the property described in:
EXHIBIT A, attached hereto and incorporated herein as though more fully set
forth.
IN WITNESS WHEREOF, the said Realm, Inc., an Ohio corporation, by order of
its Board of Directors, hath caused its corporate name to be hereunto subscribed
by Robert Logan, its President, and its Corporate Seal, to be hereunto affixed
this 13th day of February, 1998.
REALM, INC., an Ohio corporation
/s/ Robert Logan
--------------------------------------
By: Robert Logan
Its: President
STATE OF WEST VIRGINIA
COUNTY OF HANCOCK, to-wit:
I, /s/ a Notary Public in and for the said County
-------------------------
and State, do certify that Robert Logan for Realm, Inc., an Ohio corporation
whose name is signed to the foregoing writing, bearing date the 13th day of
February, 1998, has this day acknowledged the same before me to be the act
and deed of said Corporation in the aforesaid County and State.
Given under my hand this 13th day of February, 1998
/s/
-----------------------------------
Notary Public
My Commission Expires:
---------------------
<PAGE>
DECLARATION OF CONSIDERATION OF VALUE
Under the penalties of fine and imprisonment, as provided by law, I hereby
declare the total consideration paid for the property conveyed by the documents
to which this declaration is appended is $240,000.00.
Given under my hand this 13th day of February, 1998.
Grantor: /s/ Realm, Inc.
--------------------------
Address:
--------------------------
--------------------------
The foregoing instrument was prepared by Sherrilyn D. Farkas, Attorney at
Law, Chester, West Virginia 26034.
