Registration No. 33-
As filed with the Securities and Exchange Commission on December 13, 1994
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
BALLY ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-2512405
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
8700 West Bryn Mawr Avenue
Chicago, Illinois 60631
(Address of principal executive offices including zip code)
_______________
BALLY'S EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
_______________
Copy to:
Carol Stone DePaul, Esq. Leslie A. Drockton, Esq.
Secretary Benesch, Friedlander,
Bally Entertainment Corporation Coplan & Aronoff
8700 West Bryn Mawr Avenue 2300 BP America Building
Chicago, Illinois 60631 200 Public Square
(312) 399-1300 Cleveland, Ohio 44114-2378
(216) 363-4500
(Name and address including zip code; and telephone number,
including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Title of Proposed maximum
securities maximum aggregate Amount of
to be Amount to be offering price offering registration
registered <F1> registered <F2> per share <F3> price <F3> fee
- --------------- --------------- -------------- ---------- ------------
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per share 200,000 $5.625 $1,125,000 $387.93
<FN>
_____________________________________
<F1> This Registration statement covers an indeterminate amount of interests in
the Employee Stock Purchase Plan of Bally Entertainment Corporation.
<F2> This Registration statement also includes an indeterminable number of Shares
of Common Stock which may be issued under the anti-dilution provision of the
plan.
<F3> Estimated in accordance with Rule 457 under the Securities Act of 1933,
solely for the purpose of calculating the registration fee, on the basis of the
average of the high and low prices of the Common Stock on December 8, 1994 as
reported on the New York Stock Exchange.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by Bally Entertainment
Corporation (the "Company") with the Securities and Exchange Commission
("Commission") are hereby incorporated or deemed to be incorporated by
reference in this Registration Statement.
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, File No. 1-7244.
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1994, File No. 1-7244.
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1994, File No. 1-7244.
(4) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1994, File No. 1-7244.
(5) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on July 24, 1975, File No. 1-7244.
(6) All documents subsequently filed by the Company or the Plan pursuant to
Sections 13(a), 13(c), 14 or 15(a) of the Exchange Act, prior to the
termination of the offering made hereby, shall be deemed to be
incorporated by reference in this Registration Statement and to be a
part hereof from the respective date of filing each such document.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action,suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an officer
or director of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe
his conduct was illegal. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions against expenses (including attorney's fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable
to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which such officer or director actually and reasonably incurred.
The Restated Certificate of Incorporation of the Company, as amended,
as permitted by the General Corporation Law of the State of Delaware, provides
for the indemnification of directors and officers of the Company, and persons
who serve or served at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties in amounts paid or to be
paid in settlement) reasonably incurred with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative; provided,
however, the Company shall indemnify any such person seeking indemnification
in connection with a proceeding initiated by such person only if such
proceeding was authorized by the Board of Directors of the Company. In the
event a claim for indemnification by any person has not been paid in full by
the Company after written request has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall also be entitled to be paid the expense of prosecuting such
claim. The right to indemnification conferred in the Restated Certificate of
Incorporation is a contract right and shall include the right to be paid by the
Company the expenses incurred in defending any such proceeding in advance of
its final disposition. The Company may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the Company
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
The Company has purchased directors' and officers' liability
insurance covering certain liabilities incurred by its officers and directors
in connection with the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.(i)-a Restated Certificate of Incorporation of the Company, as amended.
3.(i)-b Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 12, 1987.
3.(i)-c Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 4, 1989.
3.(i)-d Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 17, 1994.
3.(ii) By-Laws of the Company, as amended (incorporated by reference to
Exhibit 3.(ii) to the Company's Form 10-K for the fiscal year
ended December 31, 1992).
4.1 The Company's Employee Stock Purchase Plan.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff, Counsel to the
Company, regarding legality.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff (contained in
their opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made,a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate,represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on the 9th day of
December, 1994.
BALLY ENTERTAINMENT CORPORATION
(Registrant)
By: /s/ Lee S. Hillman
Lee S. Hillman
Executive Vice President, Chief Financial
Officer and Treasurer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lee S. Hillman and Carol S. DePaul, or either
of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, agent,
or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of
the Company in the capacities and on the dates indicated.
Dated: December 9, 1994 /s/ Arthur M. Goldberg
Arthur M. Goldberg
Chairman of the Board,
Chief Executive Officer and President
(Principal Executive Officer)
Dated: December 9, 1994 /s/ Lee S. Hillman
Lee S. Hillman
Executive Vice President,
Chief Financial Officer and Treasurer
(Principal Financial Officer)
Dated: December 9, 1994 /s/ John W. Dwyer
John W. Dwyer
Vice President and Corporate Controller
(Principal Accounting Officer)
Dated: December 9, 1994 /s/ George N. Aronoff
George N. Aronoff
Director
Dated: December 9, 1994 /s/ Barrie K. Brunet
Barrie K. Brunet
Director
Dated: December 9, 1994 /s/ Edwin M. Halkyard
Edwin M. Halkyard
Director
Dated: December 9, 1994 /s/ J. Kenneth Looloian
J. Kenneth Looloian
Director
Dated: December 9, 1994 /s/ Rocco J. Marano
Rocco J. Marano
Director
Dated: December 9, 1994 /s/ Patrick L. O'Malley
Patrick L. O'Malley
Director
Dated: December 9, 1994 /s/ James M. Rochford
James M. Rochford
Director
<PAGE>
Exhibit Index
Exhibit No. Exhibit Description
- ----------- -------------------
3.(i)-a Restated Certificate of Incorporation of the Company, as
amended.
3.(i)-b Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 12, 1987.
3.(i)-c Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 4, 1989.
3.(i)-d Certificate of Amendment of Restated Certificate of Incorporation
of the Company, dated May 17, 1994.
3.(ii) By-Laws of the Company, as amended (incorporated by reference to
Exhibit 3.(ii) to the Company's Form 10-K for the fiscal year
ended December 31, 1992).
4.1 The Company's Employee Stock Purchase Plan.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff, Counsel to the
Company, regarding legality.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff (contained in
their opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
EXHIBIT 3.(i)-a
RESTATED CERTIFICATE OF INCORPORATION OF
BALLY MANUFACTURING CORPORATION
Bally Manufacturing Corporation, a corporation organized and
existing under the laws of the State of Delaware, hereby certifies
as follows:
1. The name of the corporation is Bally Manufacturing
Corporation. The date of filing its original Certificate of
Incorporation with the Secretary of State was March 18, 1968.
2. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the
Certificate of Incorporation of this Corporation as heretofore
amended or supplemented and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of
Incorporation.
3. The text of the Certificate of Incorporation as amended
or supplemented heretofore is hereby restated without further
amendments or changes to read as herein set forth in full:
FIRST: The name of the Corporation is BALLY MANUFACTURING
CORPORATION.
SECOND: The address of the Corporation's registered office
in the State of Delaware is 306 South State Street, in the City of
Dover, County of Kent. The name of the Corporation's registered
agent at such address is the United States Corporation Company.
THIRD: The purposes of the Corporation are as follows:
A. To engage in any commercial, mercantile, industrial,
manufacturing, marine, exploration, mining, agricultural, research,
licensing, servicing, agency, securities or brokerage business not
prohibited by law, and any, some or all of the foregoing.
B. To acquire, hold, create interests in or dispose of
real or personal property, tangible or intangible, of any kind, in
any manner.
C. To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH:
A. General Authorization. The aggregate number of
shares of capital stock which the Corporation is authorized to
issue is 110,000,000 shares, consisting of:
(1) 80,000,000 shares of common stock, having a par
value of 66-2/3 cents per share; and
(2) 30,000,000 shares of preferred stock having a
par value of $1 per share.
B. Preferred Stock.
(1) The preferred stock shall rank senior to the
common stock as to dividends and upon liquidation. The Board of
Directors of the Corporation (hereinafter in Article FOURTH
referred to as the "Board"), is authorized, subject to limitations
prescribed by law and the provisions of this subsection B, to
provide by resolution or resolutions for the issuance of the
preferred shares in series, to establish the number of shares to be
included in each such series, and to fix the designations,
preferences and relative, participating, optional or other special
rights, or qualifications, limitations or restrictions thereof,
applicable to the shares of each series. The authority of the
Board with respect to each series shall include, but not be limited
to, determination of the following:
(a) The number of shares constituting that
series and the distinctive designation of that series;
(b) The dividend rate on the shares of that
series, whether dividends shall be cumulative and the date or
dates, if any, from which dividends thereon shall be cumulative;
(c) The voting powers, if any, of the shares
of that series;
(d) Whether that series shall have conversion
or exchange privileges, and, if so, the terms and conditions of
such conversion or exchange, including provision for adjustments in
such events as the Board shall determine;
(e) Whether or not the shares of that series
shall be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at
different redemptiond dates;
(f) The rights of the shares of that series in
the event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(g) Whether shares of that series shall be
entitled to the benefit of sinking fund provisions and, if so, upon
what terms and conditions; and
(h) Generally to fix the other rights and
privileges and any qualifications, limitations or restrictions of
such rights and privileges of that series, provided, however, that
no such rights, privileges, qualifications, limitations or
restrictions shall be in conflict with the Restated Certificate of
Incorporation of the Corporation or with the resolution or
resolutions adopted by the Board, as hereinabove provided,
providing for the issue of any series for which there are shares
then outstanding.
(2) Dividends on outstanding preferred shares shall
be declared and paid, or set apart for payment, before any
dividends shall be declared and paid, or set apart for payment, on
the outstanding shares of common stock with respect to the same
dividend period. The Board may, in establishing any series of
preferred stock, provide further limitations on the payment of
dividends on the common stock while any dividends on shares of
preferred stock are accrued and unpaid.
(3) No holder of preferred shares of any series,
irrespective of any voting or other rights of such shares of such
series, shall have, as such holder, any preemptive right to
purchase any other shares of the Corporation or any securities
convertible into or entitling the holder to purchase such other
shares.
C. Common Stock.
Each share of common stock shall be equal to every
other share of common stock in every respect. Subject to the
additional voting rights, if any, which may vest in holders of the
preferred stock under the provisions of any resolution or
resolutions adopted by the Board providing for the issue of any
series of preferred stock, the shares of common stock shall entitle
the holders thereof to one vote for each share upon all matters
upon which the shareholders have the right to vote.
D. Provisions Relating to All Classes of Stock.
The Corporation may issue shares of its preferred
stock or common stock from time to time for such consideration (not
less than the par value thereof) as may be fixed from time to time
by the Board. Any and all shares so issued, for which such
consideration has been paid or delivered to the Corporation, shall
be deemed fully paid shares and shall not be liable to any further
call or assessments thereon, and the holders of such shares shall
not be liable for any further payments in respect of such shares.
FIFTH: In furtherance, and not in limitation of the powers
conferred by the General Corporation Law of Delaware, the Board of
Directors of the Corporation is expressly authorized:
A. To make, alter or repeal the By-laws of the
Corporation;
B. To direct and determine the use and disposition of
any annual net profits or net assets in excess of capital; to set
apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose; and to
abolish any such reserve in the manner in which it was created;
C. To establish bonus, profit-sharing, stock option,
retirement or other types of incentive or compensation plans for
the employees (including officers and directors) of the Corporation
and to fix the amount of the profits to be distributed or shared
and to determine the persons to participate in any such plans and
the amounts of their respective participation.
SIXTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order
a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on
this Corporation.
SEVENTH: Indemnification.
A. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of
the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person 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, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have 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 of Chancery or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
C. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in subsections A. or B., 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.
D. Any indemnification under subsections A. or B.
(unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections A. and B. Such
determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
E. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding
as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount unless it shall ultimately
be determined that he is entitled to be indemnified by the
Corporation as authorized in this section.
F. The indemnification provided by this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
G. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under
the provisions of this Article.
EIGHTH: Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection
with any corporate action by any provision of the General
Corporation Law of Delaware, the meeting and vote of stockholders
may be dispensed with if the holders of stock having not less than
the minimum percentage of the vote required by statute for the
proposed corporate action shall consent in writing to such
corporate action being taken, provided that prompt notice must be
given to all stockholders of the taking of such corporate action
without a meeting and by less than unanimous written consent.
Elections of directors of the Corporation need not be by written
ballot, unless the By-laws of the Corporation so provide.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended
Certificate of Incorporation, in the manner now or hereafter
prescribed by law, and all rights conferred on stockholders herein
are granted subject to this reservation.
In addition to any other requirements for amendments
to the Certificate, no amendment to this Certificate shall amend,
alter, change or repeal any of the provisions of Articles ELEVENTH,
TWELFTH, or this sentence of this Article NINTH unless the
amendment effecting such amendment, alteration, change or repeal
shall have received the affirmative approval of holders of shares
of capital stock of the Corporation entitled to cast at least
eighty percent (80%) of the votes at the time entitled to be cast
generally in the election of directors by all of the outstanding
shares of all classes of capital stock of the Corporation,
considered for the purposes of this paragraph of Article NINTH as
one class.
TENTH: In the absence of fraud, no contract or other
transaction between the Corporation and any other corporation, and
no act of the Corporation, shall in any way be invalidated or
otherwise affected by the fact that any one or more of the
directors of the Corporation are pecuniarily or otherwise
interested in, or are directors or officers of, such other
corporation. Any director of the Corporation individually, or any
firm or association of which any director may be a member, may be
a party to, or may be pecuniarily or otherwise interested in, any
contract or transaction of the Corporation, provided that the fact
that he individually or such firm or association is so interested
shall be disclosed or shall have been known to the Board of
Directors of the Corporation or a majority thereof; and any
director of the Corporation, who is also a director or officer of
such other corporation or who is so interested, may be counted in
determining the existence of a quorum at any meeting of the Board
of Directors or of any committee of the Corporation which shall
authorize any such contract or transaction and may vote thereat to
authorize any such contract or transaction, with like force and
effect as if he were not such director or officer of such other
corporation or not so interested. Any contract, transaction or act
of the Corporation or of the directors of any committee which shall
be ratified by a majority of a quorum of the stockholders having
voting powers at any annual meeting, or at any special meeting
called for such purpose, shall, so far as permitted by law and by
this Certificate of Incorporation, be as valid and as binding as
though ratified by every stockholder of the Corporation.
ELEVENTH: 1. Except as otherwise expressly provided in
paragraph 3 of this Article ELEVENTH and notwithstanding any other
provision of this Certificate:
(a) any merger or consolidation of the
Corporation or of any Subsidiary with or into any other
corporation;
(b) any sale, lease, exchange or other
disposition by the Corporation or any Subsidiary of assets
constituting all or substantially all of the assets of the
Corporation and its Subsidiaries taken as a whole to or with any
other corporation, person or other entity in a single transaction
or a series of related transactions; or
(c) any issuance or transfer by the
Corporation or by any Subsidiary of any voting securities of the
Corporation (except for voting securities issued pursuant to a
stock option, purchase, bonus or other plan for natural persons who
are directors, employees, consultants and/or agents of the
Corporation and its Subsidiaries) to any other corporation, person
or other entity in exchange for cash, assets or securities or a
combination thereof; shall require the affirmative approval of
holders of shares of capital stock of the Corporation entitled to
cast at least eighty percent (80%) of the votes at the time
entitled to be cast generally in the election of directors by all
of the outstanding shares of all classes of capital stock of the
Corporation, considered for the purposes of this Article ELEVENTH
as one class, if, as of the date of such transaction, or any of
such related transactions, such other corporation, person or other
entity is the beneficial owner, directly or indirectly, of shares
of capital stock of the Corporation entitled to cast five percent
(5%) or more of the votes at the time entitled to be cast generally
in the election of directors by all of the outstanding shares of
all classes of capital stock of the Corporation, considered for the
purposes of this Article ELEVENTH as one class (such a beneficial
owner being called herein a "5% Owner"). Such affirmative vote
shall be required notwithstanding the fact that no vote or a lesser
vote may be required, or that some lesser percentage may be
specified, by law or otherwise in this Certificate or the By-laws
of the Corporation.
2. For purposes of this Article ELEVENTH, the term
"Subsidiary" means any entity in which this Corporation
beneficially owns, directly or indirectly, more than eighty percent
(80%) of the outstanding voting stock. The Corporation shall not
vote its stock in any Subsidiary in favor of any transaction
described in clause (a), (b) or (c) of paragraph 1 of this Article
ELEVENTH between such Subsidiary and a 5% Owner without first
having obtained the affirmative approval of the holders of shares
of capital stock of the Corporation referred to in paragraph 1 of
this Article ELEVENTH. The phrase "voting security" as used in
paragraph 1 of this Article ELEVENTH shall mean any security which
is (or upon the happening of any event, would be) entitled to vote
for the election of directors, and any security convertible, with
or without consideration into such a security or carrying any
warrant or right to subscribe to or purchase such a security.
3. The provisions of this Article ELEVENTH shall
not apply to any transaction described in clause (a), (b) or (c) of
paragraph 1 of this Article ELEVENTH, (i) with another corporation,
person or other entity if the Board of Directors of the Corporation
shall by resolution have approved a memorandum of understanding
with such other corporation, person or other entity with respect to
and substantially consistent with such transaction prior to the
time such other corporation, person or other entity became a 5%
Owner; or (ii) approved at any time prior to its consummation by
resolution adopted by more than eighty percent (80%) of the
directors of the Corporation then in office.
4. For the purposes of this Article ELEVENTH, a
corporation, person or other entity shall be deemed to be the
beneficial owner of any shares of capital stock of the Corporation
which are beneficially owned, directly or indirectly, by any other
corporation, person or other entity (i) with which it or its
"affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of capital stock of the Corporation or (ii)
which is its "affiliate" or "associate" (as defined below). For
the purposes of this Article ELEVENTH, a person is an "affiliate"
of, or is affiliated with, a specified person if such person
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
person specified; and the term "associate" used to indicate a
relationship with any person means (1) any corporation or
organization (other than the Corporation or any Subsidiary) of
which such person is an officer or partner or is, directly or
indirectly, the beneficial owner of 5% or more of any class of
equity securities, (2) any trust or other estate in which such
person has a substantial beneficial interest or as to which such
person serves as trustee or in a similar fiduciary capacity, and
(3) any relative or spouse of such person, or any relative of such
spouse, who has the same home as such person or who is a director
or officer of the Corporation or any of its parents or
Subsidiaries.
5. The interpretation, construction and
application of any provisions of this Article ELEVENTH, and the
determination of any facts in connection with the application of
this Article ELEVENTH, including without limitation, the
determination whether (i) any corporation, person or other entity
beneficially owns, directly or indirectly, shares of capital stock
of the Corporation entitled to cast five percent (5%) or more of
the votes at the time entitled to be cast generally in the election
of directors by all of the outstanding shares of all classes of
capital stock of the Corporation, considered for the purposes of
this Article ELEVENTH as one class, or is an "affiliate" or an
"associate" (as defined above) of another, (ii) any proposed sale,
lease exchange or other disposition of part of the assets of the
Corporation or of a Subsidiary involves all or substantially all of
the assets of the Corporation and its Subsidiaries taken as a whole
and whether the same are proposed to be acquired in a single
transaction or a series of related transactions, and (iii) the
memorandum of understanding referred to above is substantially
consistent with the transaction to which it relates, shall be made
by a majority of all of the directors of the Corporation. Any such
interpretation, construction, application or determination, when
made in good faith, shall be conclusive and binding for all
purposes of this Article ELEVENTH, but only if made by a majority
of all directors of the Corporation not representing or being an
"affiliate" or "associate" (as defined above) of a 5% Owner in any
way in the transaction to which such interpretation, construction,
application or determination relates.
TWELFTH: A director or the entire Board of Directors may only
be removed, with or without cause, at any time by the vote or
consent of the holders of eighty percent (80%) of shares of all
classes of stock of the Corporation entitled to vote in the
election of directors, considered for this purpose as one class.
Any director may be removed with cause at any time by the
affirmative vote of the majority of directors in office.
The provisions of the By-laws concerning the number of
directors constituting the whole Board of Directors, the
classification of the Board of Directors into three classes, the
election of directors to hold office for a term of three (3) years
and the filling of vacancies in the Board of Directors may only be
amended, altered or repealed by the vote or consent of the holders
of eighty percent (80%) of shares of all classes of stock of this
Corporation entitled to vote in the elections of directors,
considered for this purpose as one class.
4. This Restated Certificate of Incorporation was duly
adopted by the Board of Directors in accordance with Section 245 of
The General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Bally Manufacturing Corporation has
caused this Certificate to be signed by William T. O'Donnell, its
President and attested by Glenn K. Seidenfeld, Jr., its Secretary
this 23rd day of June, 1979.
BALLY MANUFACTURING CORPORATION
By: /s/ William T. O'Donnell,
President
ATTEST:
By: /s/ Glenn K. Seidenfeld, Jr., Secretary
EXHIBIT 3.(i)-b
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
BALLY MANUFACTURING CORPORATION
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
We, Neil E. Jenkins, Vice President, and Cary A. Gaan,
Assistant Secretary, of Bally Manufacturing Corporation, do hereby
certify as follows:
FIRST: That the name of the corporation is Bally
Manufacturing Corporation.
SECOND: That the Restated Certificate of Incorporation of
the Corporation was filed by the Secretary of State of Delaware on
the 28th day of June, 1979.
THIRD: That the Restated Certificate of Incorporation of
said Corporation has been amended as follows:
SEVENTH: Director Liability, Indemnification and
Insurance
Section 1. Limitation of Liability of Directors. No director
shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest
extent permitted by the amended Delaware General Corporation Law.
Any repeal or modification of this Section shall be prospective
only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of
such repeal or modification.
Section 2. Indemnification and Insurance.
A. Right to Indemnification. Each person who was or is made
a party to or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is
the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said
law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that,
except as provided in paragraph B hereof, the Corporation shall
indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification
conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
deposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by
a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not
entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the
same scope and effect as the foregoing indemnification of directors
and officers.
B. Right of Claimant to Bring Suit. If a claim under
paragraph A of this Section is not paid in full by the Corporation
within thirty (30) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation
Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the claimant
has not met the applicable standard of conduct.
C. Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall
not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate
of incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
D. Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership,
joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
E. Continuation of Indemnity. As used in this Article,
references to "the Corporation" shall include, in addition to the
resulting or surviving corporation, any constituent corporation
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, employees and agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request
of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the
resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had
continued.
F. Severability. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify
each director, officer, employee and agent of the Corporation as to
expenses (including attorneys' fees), judgment, fines and amounts
paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including
a grand jury proceeding and an action by the Corporation, to the
fullest extent permitted by any applicable portion of this Article
that shall not have been invalidated or by any other applicable
portion of this Article that shall not have been invalidated or by
any other applicable law.
FOURTH: That such amendment has been duly adopted in
accordance with the provisions of the General Corporation Law of
the State of Delaware by the affirmative vote of the holders of a
majority of all outstanding stock entitled to vote at a meeting of
stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 12th
day of May, 1987.
BALLY MANUFACTURING CORPORATION
By: /s/ Neil J. Jenkins
Vice President
ATTEST:
/s/ Cary A. Gaan
Assistant Secretary
EXHIBIT 3.(i)-c
CERTIFICATE OF AMENDMENT
OF RESTATED
CERTIFICATE OF INCORPORATION
Bally Manufacturing Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the
State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation
adopted a resolution proposing and declaring advisable the
following amendment to the Restated Certificate of Incorporation of
said Corporation:
RESOLVED, that the Corporation's Restated Certificate of
Incorporation be amended by adding an Article THIRTEENTH,
which reads as follows:
THIRTEENTH:
A. Except as is otherwise expressly provided in this
Restated Certificate of Incorporation or in instruments containing
the terms of the Corporation's securities, which instruments have
been approved by the Nevada Gaming Commission ("Nevada
Commission"), if required, and the New Jersey Casino Control
Commission ("New Jersey Commission"), and so long as the
Corporation remains either a "holding company" or an "intermediary
company" (as those terms or equivalent terms are or may be defined
under the Nevada Gaming Control Act ("Nevada Act") and the New
Jersey Casino Control Act ("New Jersey Act")) of the holder of a
gaming or casino license in either Nevada or New Jersey, all
securities of the Corporation shall be held subject to the
requirement of the Nevada Act and the New Jersey Act that if a
holder thereof is found to be unsuitable pursuant to the Nevada Act
by the Nevada Commission or is found to be disqualified pursuant to
the New Jersey Act by the New Jersey Commission, such holder shall
dispose of his securities in the Corporation promptly after such
Holder's receipt of written notice of his unsuitability or
disqualification. Promptly following its receipt of notice from
the Nevada Commission or the New Jersey Commission (the "Notice
Date"), the Corporation shall either deliver such written notice
personally to the unsuitable or disqualified holder or shall mail
it to such holder by certified mail, return receipt requested, to
the address shown on the Corporation's books and records. If any
unsuitable or disqualified holder fails to dispose of his
securities within 120 days following such holder's receipt of
written notice of his unsuitability or disqualification, (i) such
securities shall always be subject to redemption by the
Corporation, by action of the Board of Directors, if in the
judgment of the Board of Directors such action should be taken
pursuant to section 151(b) of the General Corporation Law of
Delaware or any other applicable provision of law, to the extent
necessary to prevent the loss or secure the reinstatement of any
government-issued license or franchise held by the Corporation or
any Subsidiary to conduct any portion of the business of the
Corporation or such Subsidiary, which license or franchise is
conditioned upon some or all of the holders of the Corporation's
securities possessing prescribed qualifications, and (ii) such
unsuitable or disqualified holder shall indemnify the Corporation
for any and all direct or indirect costs, including attorneys'
fees, incurred by the Corporation as a result of such holder's
continuing ownership or failure to divest promptly.
B. Commencing on the date the Nevada Commission or the New
Jersey Commission serves notice upon the Corporation of the
determination of unsuitability or disqualification, it shall be
unlawful pursuant to the Nevada Act and the New Jersey Act for the
unsuitable or disqualified holder (i) to receive any dividends or
interest upon his securities in the Corporation; (ii) to exercise,
directly or through any trustee or nominee, any right conferred by
such securities; or (iii) to receive any remuneration in any form
from the Corporation for services rendered or otherwise.
C. The redemption price of any securities to be redeemed
pursuant to this Article THIRTEENTH shall be equal to the lesser of
(i) the holder's original purchase price for the securities or (ii)
the lowest closing sale price of the securities between the Notice
Date and the date 120 days after the Notice Date.
D. For purposes of this Article THIRTEENTH, the term
"Subsidiary" means any entity of which this Corporation is deemed
to be a "holding company" or an "intermediary company" as those
terms or equivalent terms are or may be defined under the Nevada
Act and the New Jersey Act.
SECOND: That at the annual meeting of stockholders of said
Corporation duly held on May 4, 1989, upon notice in accordance
with Section 222 of the General Corporation Law of the State of
Delaware, the necessary number of shares as required were voted in
favor of the aforesaid amendment.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Bally Manufacturing Corporation has
caused this Certificate to be signed by Robert Mullane, its
Chairman of the Board, and attested by Neil E. Jenkins, its
Secretary, this 4th day of May, 1989.
BALLY MANUFACTURING CORPORATION
By: /s/ Robert Mullane
Chairman of the Board
ATTEST:
By: /s/ Neil E. Jenkins
Secretary
EXHIBIT 3.(i)-d
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION
Bally Manufacturing Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted
resolutions on February 15, 1994 proposing and declaring advisable
the following amendment to the Restated Certificate of
Incorporation of the Corporation:
WHEREAS, it is deemed advisable and in the best
interest of the Company to change its name to Bally
Entertainment Corporation so that the Company's name will
more accurately describe its ongoing business activities
through the use of the broader descriptive term
"entertainment".
NOW, THEREFORE, BE IT RESOLVED, that Article FIRST
of the Company's Restated Certificate of Incorporation
shall be amended by striking out Article FIRST in its
entirety and inserting in lieu thereof the following:
FIRST: The name of the Corporation is
Bally Entertainment Corporation;
FURTHER RESOLVED, that this Board of Directors
recommends that the foregoing amendment be submitted to
the stockholders of the Company for approval at the
Annual Meeting of Stockholders of the Company;
FURTHER RESOLVED, that the officers of the Company,
or any of them, be, and they hereby are, authorized to
execute and deliver any and all documents required to be
executed or delivered in connection with the name change,
including, but not limited to, executing and delivering
to the Secretary of State of the State of Delaware a
Certificate of Amendment to Restated Certificate of
Incorporation and to cause the same to be recorded with
the New Castle County Recorder's office, and to execute
and deliver any and all additional documents required to
be executed or delivered in all other states in which the
name change must be filed and recorded; and
FURTHER RESOLVED, that the officers of the Company,
or any of them, be, and they hereby are, authorized to
execute and deliver any and all additional documents
required to be executed or delivered in connection with
the above resolutions; and that all acts and deeds
previously performed by the officers of the Company in
connection with the above be, and they hereby are,
approved, ratified and affirmed for and on behalf of the
Company.
SECOND: That at the annual meeting of stockholders of the
Corporation held on May 17, 1994, upon notice in accordance with
Section 222 of the General Corporation Law of the State of
Delaware, the necessary number of shares as required were voted in
favor of the aforesaid amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Bally Manufacturing Corporation has caused
this Certificate to be signed by Lee S. Hillman, its Executive Vice
President, and attested by Carol S. DePaul, its Secretary, this
17th day of May, 1994.
BALLY MANUFACTURING CORPORATION
By /s/Lee S. Hillman
Executive Vice President
ATTEST:
By /s/ Carol S. DePaul
Secretary
EXHIBIT 4.1
BALLY'S EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan. This Employee Stock Purchase Plan
of Bally Manufacturing Corporation adopted on this 8th day of
December, 1993, is intended to encourage eligible employees of the
Company and its Subsidiaries to acquire or increase their ownership
of common stock of the Company on reasonable terms. The
opportunity so provided is intended to foster in participants a
strong incentive to put forth maximum effort for the continued
success and growth of the Company and its Subsidiaries, to aid in
retaining individuals who put forth such efforts, and to assist in
attracting the best available individuals to the Company and its
Subsidiaries in the future. It is the Company's intention that
this Employee Stock Purchase Plan qualify as an "employee stock
purchase plan" under Section 423 of the Code. Accordingly, the
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2. Definitions. When used herein, the following terms shall
have the meanings set forth below:
2.1 "Account" means the funds accumulated with respect
to an Employee as a result of deductions from his paycheck for
the purpose of purchasing Shares under the Plan. The funds
allocated to an Employee's Account shall remain the property
of the Employee at all times but may be commingled with the
general funds of the Company.
2.2 "Board" means the Board of Directors of Bally
Manufacturing Corporation.
2.3 "Change in Control" means a change in control of the
Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act (as in effect on the date
the Plan is adopted by the Board); provided, that, without
limitation, such a change in control shall be deemed to have
occurred if:
(a) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding
securities; or
(b) During any period of two (2) consecutive years
(not including any period prior to the date the Plan is
adopted by the Board) there shall cease to be a majority
of the Board comprised of Continuing Directors; or
(c) (i) the stockholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which
would result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity)
at least eighty percent (80%) of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such
merger or consolidation; or
(ii) the stockholders of the Company approve
a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets.
2.4 "Code" means the Internal Revenue Code of 1986, as
in effect at the time of reference, or any successor revenue
code which may hereafter be adopted in lieu thereof, and
reference to any specific provisions of the Code shall refer
to the corresponding provisions of the Code as it may
hereafter be amended or replaced.
2.5 "Committee" means the Compensation and Stock Option
Committee of the Board or any other committee appointed by the
Board which is invested by the Board with responsibility for
the administration of the Plan and whose members meet the
requirements for eligibility to serve as set forth in Rule
16b-3 and in the Plan.
2.6 "Company" means Bally Manufacturing Corporation.
2.7 "Continuing Directors" means individuals who at the
beginning of any period of two (2) consecutive years (not
including any period prior to the adoption of this Plan)
constitute the Board and any new director(s) whose election by
the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved.
2.8 "Eligible Compensation" means the regular
compensation (i.e., straight time earnings or draw) earned by
an Employee during a payroll period, before deductions or
withholdings, but shall exclude, unless the Committee
determines otherwise, all other amounts, including, but not
limited to, (i) amounts paid as bonuses, for overtime, as the
reimbursement of expenses and other additional compensation,
(ii) all amounts contributed by the Company or any Subsidiary
under any profit-sharing, pension, retirement, group insurance
or other employee welfare benefit plan or trust whether now in
existence or hereinafter adopted and (iii) any income from
stock option exercises or other equity based compensation.
2.9 "Exchange Act" means the Securities Exchange Act of
1934, as in effect at the time of reference, or any successor
law which may hereafter be adopted in lieu thereof, and any
reference to any specific provisions of the Exchange Act shall
refer to the corresponding provisions of the Exchange Act as
it may hereafter be amended or replaced.
2.10 "Employees" means persons employed by the Company or
any of its Subsidiaries; provided, however, that no person
shall be considered an Employee unless he (i) is customarily
employed by the Company or any of its Subsidiaries for more
than twenty (20) hours per week and more than five (5) months
in a calendar year and (ii) has been employed by the Company
or any of its Subsidiaries for at least twelve (12)
consecutive months as of the Offering Commencement Date of any
such offering.
2.11 "Fair Market Value" means, with respect to the
Shares, the closing price of the Shares on the last business
day prior to the date on which the value is to be determined,
as reported on the New York Stock Exchange Composite Tape or
such other source of quotation for, or reports of, trading
activity in Shares as the Committee may from time to time
select.
2.12 "Offering Commencement Date" means January 1 or July
1, as the case may be, or any other date determined by the
Committee, on which a particular offering begins.
2.13 "Offering Termination Date" means the June 30 or
December 31, as the case may be, or any other date determined
by the Committee, on which a particular offering terminates.
2.14 "Option" means the right granted to an Employee to
purchase Shares pursuant to an offering made under the Plan
and pursuant to such Employee's election to purchase Shares in
such offering, at a price, and subject to such limitations and
restrictions as the Plan and the Committee may impose.
2.15 "Parent" means any corporation, other than the
employer corporation, in an unbroken chain of corporations
ending with the employer corporation if each of the
corporations other than the employer corporation owns stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
2.16 "Plan" means Bally's Employee Stock Purchase Plan.
2.17 "Purchase Period" means the period commencing on the
Offering Commencement Date and ending on the Offering
Termination Date during which installment payments for Shares
purchased pursuant to Options granted pursuant to an offering
made under the Plan shall be made.
2.18 "Rule 16b-3" means Rule 16b-3 of the General Rules
and Regulations of the Exchange Act, as in effect at the time
of reference, or any successor rules or regulations which may
hereafter be adopted in lieu thereof, and any reference to any
specific provisions of Rule 16b-3 shall refer to the
corresponding provisions of Rule 16b-3 as it may hereafter be
amended or replaced.
2.19 "Shares" means shares of the Company's $.66 2/3 par
value common stock or, if by reason of the adjustment
provisions contained herein, any rights under the Plan pertain
to any other security, such other security.
2.20 "Subsidiary" or "Subsidiaries" means any corporation
or corporations other than the employer corporation in an
unbroken chain of corporations beginning with the employer
corporation if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of
all classes of stock in one of the other corporations in such
chain.
2.21 "Successor" means the legal representative of the
estate of a deceased Employee or the person or persons who
shall acquire the right to exercise or receive an Option by
bequest or inheritance or by reason of the death of the
Employee.
3. Stock Subject to the Plan. There will be reserved for
use, upon the exercise of Options to be granted from time to time
pursuant to offerings made under the Plan, an aggregate of 200,000
Shares, which Shares may be, in whole or in part, as the Board
shall from time to time determine, authorized but unissued Shares,
or issued Shares which shall have been reacquired by the Company.
The number of Shares reserved under the Plan may be issued pursuant
to the exercise of Options granted pursuant to one or more
offerings made under the Plan. Any Shares subject to issuance upon
exercise of Options but which are not issued because of a
surrender, lapse, expiration or termination of any such Option
prior to issuance of the Shares shall once again be available for
issuance in satisfaction of Options.
4. Administration of the Plan. The Board shall appoint the
Committee to administer the Plan. Subject to the provisions of the
Plan, the Committee shall have full authority, in its discretion,
to determine when offerings will be made under the Plan, the number
of Shares available for purchase in any such offering, and the
terms and conditions of any such offering; to amend or cancel
options (subject to Section 25 of the Plan); to interpret the Plan,
to prescribe, amend and rescind rules and regulations relating to
the Plan; and generally to interpret and determine any and all
matters whatsoever relating to the administration of the Plan. All
decisions, determinations and interpretations made by the Committee
shall be binding and conclusive on all participants in the Plan and
on their legal representatives, heirs and beneficiaries. The Board
may from time to time appoint members to the Committee in
substitution for or in addition to members previously appointed and
may fill vacancies, however caused, in the Committee. No member of
the Committee shall be liable, in the absence of bad faith, for any
act or omission with respect to his service on the Committee.
5. Offerings. Unless the Committee, in its discretion,
determines otherwise, the Plan will be implemented by up to twenty
(20) consecutive six (6) month offerings. The first offering under
the Plan shall commence on July 1, 1994 and terminate on
December 31, 1994. Thereafter, offerings shall commence on each
subsequent January 1 and July 1 and terminate on the following
June 30 and December 31, respectively, of such year until the Plan
is terminated or no additional Shares are available for purchase
under the Plan.
6. Eligibility to Participate in Offerings. All Employees
shall be eligible to participate in the Plan; provided, however,
that the Committee may exclude the Employees of any specified
Subsidiary from any offering made under the Plan; and provided
further, that the Committee may determine that any offering of
Shares made under the Plan will not be extended to highly
compensated Employees (within the meaning of Section 414(q) of the
Code).
7. Participation. An eligible Employee may become a
participant in the Plan by completing, signing and filing a
subscription agreement ("Subscription Agreement") which shall
designate a whole percentage of his Eligible Compensation, not to
exceed ten percent (10%), to be withheld during the Purchase Period
of any offering in which he participates, and any other necessary
papers, including, but not limited to, any forms required to
establish a brokerage account at a brokerage firm designated by the
Committee in the Employee's name for the purpose of holding any
Shares purchased pursuant to the Plan, with such person as the
Committee may designate at least ten (10) days prior to the
Offering Commencement Date of the first offering in which he wishes
to participate. After completing, signing and filing a
Subscription Agreement and any other necessary papers in accordance
with the preceding sentence, an Employee shall be deemed to have
become a participant in the Plan for each subsequent offering until
the Employee withdraws from the Plan in accordance with Section 14
hereof, is deemed to have withdrawn from the Plan in accordance
with Section 19 hereof, or otherwise gives written notice of his
intent to withdraw to such person as the Committee may designate.
Except as otherwise provided in Section 14, if an Employee desires
to change the percentage of his Eligible Compensation to be
withheld and applied to the purchase of Shares, or if an Employee
who withdraws from the Plan desires to re-enter the Plan, he must
file a new Subscription Agreement in accordance with this Section
7 at least ten (10) days prior to the Offering Commencement Date of
the particular offering to which such change or re-entry is
intended to apply. An Employee's re-entry into the Plan cannot
become effective before the beginning of the next offering
following his withdrawal; provided, however, if an Employee is
subject to Section 16(b) of the Exchange Act, his re-entry into the
Plan must comply with the requirements of Rule 16b-3 for all
transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act. Participation in one offering under the Plan shall
neither limit nor require participation in any other offering.
8. Grant of Options. Subject to the limitations set forth
in Sections 6 and 9 of the Plan, on the Offering Commencement Date
of each offering made under the Plan, each Employee who has
previously elected to participate in the Plan shall automatically
be granted an Option for as many full Shares as he will be able to
purchase with the payroll deductions credited to his Account during
the Purchase Period of that offering. In the event the total
maximum number of Shares resulting from all elections to purchase
under any offering of Shares made under the Plan exceeds the number
of Shares offered, the Company reserves the right to reduce the
maximum number of Shares which Employees may purchase pursuant to
their elections to purchase, to allot the Shares available in such
manner as it shall determine (subject to the requirements of
Section 423 of the Code), but generally pro rata to subscriptions
received, and to grant Options to purchase only for such reduced
number of Shares. Notice of any such reduction shall be given to
each participating Employee. In the event an Employee's election
to purchase Shares pursuant to an offering made under the Plan is
cancelled, in whole or in part, pursuant to the provisions of the
Plan, a proportionate portion of the Option granted to such
Employee shall automatically terminate.
9. Limitations of Number of Shares Which May be Purchased.
The following limitations shall apply with respect to the number of
Shares which may be purchased by each Employee who elects to
participate in an offering made under the Plan:
(a) No Employee may purchase, or elect to purchase,
Shares during any one offering pursuant to the Plan for an
aggregate purchase price in excess of ten percent (10%) of his
Eligible Compensation during the Purchase Period applicable to
such offering.
(b) No Employee shall be granted an Option to purchase
Shares under the Plan if such Employee immediately after such
Option is granted, owns stock (within the meaning of Section
424(d) of the Code, and including stock subject to purchase
under any outstanding options) possessing five percent (5%) or
more of the total combined voting power or value of all
classes of stock of the Company or, if applicable, any
Subsidiary or, if applicable, a Parent.
(c) No Employee shall be granted an Option to purchase
Shares which permits his right to purchase stock under the
Plan and all other employee stock purchase plans of the
Company and, if applicable, a Subsidiary, and, if applicable,
a Parent, to accrue (as determined under Section 423(b)(8) of
the Code) at a rate which exceeds ($25,000) of fair market
value of such stock (determined on the date the Option to
purchase is granted) for each calendar year in which such
Option is outstanding at any time.
10. Exercise Price. Unless the Committee, in its discretion,
determines to set a higher per Share exercise price, the per Share
exercise price for Shares subject to purchase under Options granted
pursuant to an offering made under the Plan shall be an amount
equal to the lesser of (a) eighty-five percent (85%) of the Fair
Market Value of the Shares on the Offering Commencement Date, and
(b) eighty-five percent (85%) of the Fair Market Value of the
Shares on the Offering Termination Date.
11. Method of Payment. Payment of the exercise price of any
Option granted pursuant to the Plan shall be made in installments
through payroll deductions, with no right of prepayment. Each
Employee electing to participate in an offering of Shares made
under the Plan shall authorize the Company pursuant to Section 7 of
the Plan to withhold a designated amount from his regular weekly,
bi-weekly, semimonthly or monthly pay for each payroll period
during the Purchase Period, which amount, expressed as a
percentage, may not exceed ten percent (10%) of his Eligible
Compensation. All such payroll deductions made for an Employee
shall be credited to his Account. An Employee may not make any
separate cash payments into his Account, nor may payment for Shares
be made other than by payroll deduction. No interest shall accrue
on the amounts credited to an Employee's Account pursuant to this
Section 11.
12. Exercise of Options. As of the close of business on the
Offering Termination Date of any offering of Shares made under the
Plan, each outstanding Option shall automatically be exercised.
Subject to the limitations in Sections 6, 8 and 9 of the Plan, upon
the exercise of an Option, the aggregate amount of the payroll
deductions credited to the Account of each Employee as of that date
will automatically be applied to the exercise price for the
purchase of that number of Shares, rounded to the nearest whole
share, equal to the Account balance divided by the exercise price.
A certificate representing the Shares so purchased shall be
delivered to the Employee or the Employee's Successor, or, in the
Committee's discretion, to a brokerage account established for the
benefit of the Employee or the Employee's Successor (which contains
such terms and conditions as the Committee may designate), as soon
as reasonably practicable after the exercise of the Option. Unless
an Employee notifies the Company in writing not to carry over the
balance of his Account to the next offering, the Company shall
carry over the balance of his Account to the next offering. Upon
termination of the Plan, the balance of each Employee's Account
shall be returned to him.
13. Rights As Stockholder. An Employee will become a
stockholder of the Company with respect to Shares for which payment
has been received at the close of business on the Offering
Termination Date. An Employee will have no rights as a stockholder
with respect to Shares under an election to purchase Shares until
he has become a stockholder as provided above.
14. Cancellation of Election to Purchase. An Employee who
has elected to purchase Shares pursuant to any offering made under
the Plan may cancel his election in its entirety or may partially
cancel his election (as set forth in his Subscription Agreement) by
reducing the percentage amount which he has authorized the Company
to withhold from his Eligible Compensation for each payroll period
during the Purchase Period. Any such full or partial cancellation
shall be effective upon the delivery by the Employee of written
notice of cancellation to such person as the Committee may
designate. Such notice of cancellation must be so delivered before
the close of business on the third to last business day of the
Purchase Period. If an Employee partially cancels his original
election by reducing the amount authorized to be withheld from his
pay, he shall continue to make installment payments at the reduced
rate for the remainder of the Purchase Period, and for any
subsequent offering in which he participates unless he files a new
Subscription Agreement in accordance with Section 7 hereof.
An Employee's rights upon the full or partial cancellation of
his election to purchase Shares shall be limited to the following:
(a) He may receive in cash, as soon as practicable after
delivery of the notice of cancellation, the amount then
credited to his Account, except that, in the case of a partial
cancellation, he must retain in his Account an amount equal to
the amount of his new payroll deduction times the number of
payroll periods in the Purchase Period through the date of
cancellation, or
(b) He may have the amount credited to his Account at
the time the cancellation becomes effective applied to the
purchase of the number of Shares such amount will then
purchase. The purchase of Shares will become effective at the
close of business on the Offering Termination Date.
In the case of a full cancellation, the Employee shall be
deemed to have withdrawn from the Plan. To re-enter the Plan, the
Employee must file a new Subscription Agreement in accordance with
Section 7.
15. Leave of Absence or Layoff. An Employee purchasing
Shares under the Plan who is granted a leave of absence (including
a military leave) or is laid off during the Purchase Period may at
that time elect to suspend payments during the leave of absence,
or, in the case of a layoff, he may suspend payments for not more
than ninety (90) days, but, in either case, not beyond the last day
of the Purchase Period. Any such suspension shall be treated as a
partial cancellation of his election to purchase Shares.
If the Employee does not return to active service upon the
expiration of his leave of absence or within ninety (90) days from
the date of his layoff, his election to purchase shall be deemed to
have been canceled at that time, and the Employee's only right will
be to receive in cash the amount credited to his Account.
16. Effect of Failure to Make Payments When Due. If in any
payroll period an Employee who has filed an election to purchase
Shares under the Plan has no pay or his pay is insufficient (after
other authorized deductions) in any payroll period to permit
deduction of his installment payment, the amount of such deficiency
shall be treated as a partial cancellation of his election to
purchase Shares.
17. Retirement. If an Employee who retires in a manner
entitling him to early, normal or late retirement benefits under
the provisions of any retirement plan of the Company or a
Subsidiary in which the Employee participates (or if no such plan
then exists, at or after age sixty-five (65)) has an election to
purchase Shares in effect at the time of his retirement, he may,
within three (3) months after the date of his retirement (but in no
event later than the close of business on the third to last
business day of the Purchase Period), by delivering written notice
to such person as the Committee may designate, elect to:
(a) Receive in cash, as soon as practicable after
delivery of such notice, the amount then credited in his
Account, or
(b) Have the amount credited to his Account at the time
of the termination of his employment by reason of retirement
applied to the purchase of the number of Shares such Account
will then purchase, such purchase to be effective as of the
Offering Termination Date.
If no such notice is given within such period, the election
will be deemed canceled as of the date of retirement and the only
right of the Employee will be to receive in cash the amount
credited to his Account.
18. Death. If an Employee, including a retired Employee,
dies and has an election to purchase Shares in effect at the time
of his death, the Employee's Successor may, within three (3) months
from the date of death (but in no event later than the close of
business on the third to last business day of the Purchase Period),
by delivering written notice to such person as the Committee may
designate, elect to:
(a) Receive in cash, as soon as practicable after
delivery of such notice, the amount then credited in the
Employee's Account, or
(b) Have the amount credited to the Employee's Account
at the time of the Employee's death applied to the purchase of
the number of Shares such Account will then purchase, such
purchase to be effective as of the Offering Termination Date.
If no such notice is given within such period, the election
will be deemed canceled as of the date of death, and the only right
of such Successor will be to receive in cash the amount credited to
the Employee's Account.
19. Termination of Employment Other Than For Retirement or
Death. If an Employee's employment is terminated for any reason
other than retirement or death prior to the end of the Purchase
Period of any offering, the Employee's rights under the Plan will
terminate at such time. A notice to withdraw from the Plan will be
considered as having been received from the Employee on the day his
employment ceases, and the only right of the Employee will be to
receive the cash then credited to his Account.
20. Nontransferability of Options. An Option, or an
Employee's right to any amounts held for his Account under the
Plan, shall not be transferable, other than (a) by will or the laws
of descent and distribution, and an Option may be exercised, during
the lifetime of the holder of the Option, only by the holder or in
the event of death, the holder's Successor or (b) if permitted
pursuant to the Code and the Regulations thereunder without
affecting the Option's qualification under Section 423 of the Code,
pursuant to a qualified domestic relations order.
21. Adjustments Upon Changes in Capitalization. In the event
of changes in all of the outstanding Shares by reason of stock
dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations or liquidations, or similar events, or in the event
of extraordinary cash or non-cash dividends being declared with
respect to the Shares, or similar transactions or events, the
number and class of Shares available under the Plan in the
aggregate, the number and class of Shares subject to Options
theretofore granted, applicable purchase prices and all other
applicable provisions, shall, subject to the provisions of the
Plan, be equitably adjusted by the Committee. The foregoing
adjustment and the manner of application of the foregoing
provisions shall be determined by the Committee in its sole
discretion. Any such adjustment may provide for the elimination of
any fractional Share which might otherwise become subject to an
Option.
22. Change in Control. Notwithstanding anything to the
contrary herein, in the case of a Change in Control of the Company,
the Board may, in its sole discretion, elect to terminate the
Purchase Period of any offering then in effect as of the last day
of the month during which the Change in Control occurs, with the
effect that such day will be the Offering Termination Date of such
offering.
23. Taxes. The Employee, or his Successor, shall promptly
notify the Company of any disposition of Shares acquired pursuant
to the exercise of an Option under the Plan and the Company shall
have the right to deduct any taxes required by law to be withheld
as a result of such disposition from any amounts otherwise payable
then or at any time thereafter to the Employee. The Company shall
also have the right to require a person entitled to receive Shares
pursuant to the exercise of an Option to pay the Company the amount
of any taxes which the Company is or will be required to withhold
with respect to the Shares before the certificate for such Shares
is delivered pursuant to the Option.
24. Termination of the Plan. The Plan shall terminate ten
(10) years from the date the Plan becomes effective, and an Option
shall not be granted under the Plan after that date although the
terms of any Options may be amended at any date prior to the end of
its term in accordance with the Plan. Any Options outstanding at
the time of termination of the Plan shall continue in full force
and effect according to the terms and conditions of the Option and
this Plan.
25. Amendment of the Plan. The Plan may be amended at any
time and from time to time by the Board, but no amendment without
the approval of the stockholders of the Company shall be made if
stockholder approval under Section 423 of the Code or Rule 16b-3
would be required. Notwithstanding the discretionary authority
granted to the Committee in Section 4 of the Plan, no amendment of
the Plan or any Option granted under the Plan shall impair any of
the rights of any holder, without the holder's consent, under any
Option theretofore granted under the Plan.
26. Delivery of Shares on Exercise. Delivery of certificates
for Shares to or for the benefit of an Employee pursuant to the
exercise of an Option may be postponed by the Company such period
as may be required for it with reasonable diligence to comply with
any applicable requirements of any federal, state or local law or
regulation or any administrative or quasi-administrative
requirement applicable to the sale, issuance, distribution or
delivery of such Shares. The Committee may, in its sole
discretion, require an Employee to furnish the Company with
appropriate representations and a written investment letter prior
to the exercise of an Option or the delivery of any Shares pursuant
to the exercise of an Option.
27. Fees and Costs. The Company shall pay all original issue
taxes on the exercise of any Option granted under the Plan and all
other fees and expenses necessarily incurred by the Company in
connection therewith.
28. No Contract of Employment. Neither the adoption of this
Plan nor the grant of any Option shall be deemed to obligate the
Company or any Subsidiary to continue the employment of any
Employee.
29. Effectiveness of the Plan. The Plan shall become
effective on July 1, 1994. Notwithstanding the foregoing, unless
the Plan is approved by the Company's stockholders either (i) at a
meeting duly held in accordance with Delaware law within twelve
(12) months after being adopted by the Board, or (ii) by a written
consent in accordance with Delaware law within twelve (12) months
after being adopted by the Board, the Plan and all Options made
under it shall be void and of no force and effect.
30. Other Provisions. As used in the Plan, and in other
documents prepared in implementation of the Plan, references to the
masculine pronoun shall be deemed to refer to the feminine or
neuter, and references in the singular or the plural shall refer to
the plural or the singular, as the identity of the person or
persons or entity or entities being referred to may require. The
captions used in the Plan and in such other documents prepared in
implementation of the Plan are for convenience only and shall not
affect the meaning of any provision hereof or thereof.
Adopted on December 8, 1993
EXHIBIT 5.1
BENESCH FRIEDLANDER COPLAN & ARONOFF
Attorneys At Law
2300 BP America Building
Cleveland, OH 44114-2378
(216) 363-4500
Fax (216) 363-4588
December 13, 1994
Board of Directors
Bally Entertainment Corporation
8700 West Bryn Mawr Avenue
Chicago, Illinois 60631
Re: Registration Statement on Form S-8
Gentleman:
It is our understanding that Bally Entertainment Corporation, a
Delaware corporation ("Company"), intends to file with the
Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, a Registration Statement on Form S-8
("Registration Statement"), which Registration Statement relates
to 200,000 shares of common stock, par value $.66 2/3 per share,
of the Company ("Common Stock"), to be issued pursuant to the
Bally's Employee Stock Purchase Plan (the "Plan").
We have examined and relied on originals or copies, certified or
otherwise identified to our satisfaction as being true copies, of
all such records of the Company, all such agreements,
certificates of officers of the Company and others, and such
other documents, certificates and corporate or other records as
we have deemed necessary as a basis for the opinion expressed in
this letter.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to facts material to
the opinions expressed in this letter, we have relied on
statements and certificates of officers of the Company and of
state authorities.
We have investigated such questions of law for the purpose of
rendering the opinions in this letter as we have deemed
necessary. We express no opinion in this letter concerning any
law other than the Delaware General Corporation Law.
<PAGE>
Board of Directors of
Bally Entertainment Corporation
Page 2
December 13, 1994
On the basis of the foregoing, we are of the opinion that the
Common Stock, when sold pursuant to the terms of the Plan, will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
BENESCH, FRIEDLANDER,
COPLAN & ARONOFF
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8 No. 33- )
pertaining to the Bally's Employee Stock Purchase Plan of
Bally Entertainment Corporation and in the related
Prospectus of our report dated February 25, 1994, except
for the seventh paragraph of the "Long-term debt" note,
as to which the date is March 8, 1994, with respect to
the consolidated financial statements and schedules of
Bally Entertainment Corporation included in its Form 10-K
for the year ended December 31, 1993, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
December 12, 1994
