AMENDED AND RESTATED BYLAWS
OF
COLORADO GAMING & ENTERTAINMENT CO.
ARTICLE I
CORPORATE NAME AND OFFICES
SECTION 1. The name of the corporation is Colorado
Gaming & Entertainment Co. (the "Corporation").
SECTION 2. The Corporation shall continuously maintain
in the State of Delaware, a registered office and a registered
agent whose office is identical with such registered office and
may have other offices within or without the state. The address
of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle, State of Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation
Trust Company. The Corporation reserves the power to change its
registered agent and registered office at any time.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of
stockholders of the Corporation shall be held on such date, at
such time and at such place within or without the State of
Delaware as shall be determined by the Board of Directors from
time to time.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
stockholders may be called either by the President of the
Corporation, the Board of Directors (sometimes referred to as the
"Board"), pursuant to a resolution approved by the majority of
the entire Board, or by the holders of at least 25% of the votes
entitled to be cast by the then outstanding shares of common
stock of the Corporation at such meeting, for the purpose or
purposes stated in the call of the meeting.
SECTION 3. PLACE OF MEETINGS. Each meeting of the
stockholders for the election of directors shall be held at the
offices of the Corporation in Denver, Colorado, unless the Board
of Directors shall, by resolution, designate any other place of
such meeting. Meetings of stockholders for any other purpose may
be held at such place, within or without the State of Delaware,
and at such time as shall be determined pursuant to Section 2 of
this Article II, and stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
SECTION 4. NOTICE OF MEETINGS. A written notice of each
meeting of stockholders, stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at the meeting. Unless otherwise
provided by the General Corporation Law of Delaware ("DGCL"), the
notice shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting. If the notice is
mailed, it shall be deposited in the United States mail, postage
prepaid, and shall be directed to the stockholder at his address
as it appears on the records of the Corporation. Notice shall be
deemed given on the date it has been mailed if deposited in the
United States mail, upon receipt if personally delivered, and
upon transmission if delivered by facsimile transmission to the
telephone number contained in the records of the Corporation.
For any notice delivered hereunder by facsimile transmission, the
recipient may rely upon a facsimile signature unless and until
receipt of any revocation of such facsimile signature by the
signator of the notice. No notice need be given to any person
with whom communication is unlawful, nor shall there be any duty
to apply for any permit or license to give notice to any such
person.
SECTION 5. WAIVER OF NOTICE. Anything herein to the
contrary notwithstanding, with respect to any stockholder
meeting, any stockholder who in person or by proxy shall have
waived in writing notice of the meeting, either before or after
such meeting, or who shall attend the meeting in person or by
proxy, shall be deemed to have waived notice of such meeting
unless he attends for the express purpose of objecting at the
beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
SECTION 6. QUORUM; MANNER OF ACTING AND ORDER OF
BUSINESS. Subject to the provisions of these Amended and
Restated Bylaws, the Amended and Restated Certificate of
Incorporation (as further amended or restated from time to time),
and the DGCL as to the vote that is required for a specified
action, the presence in person or by proxy of the holders of a
majority of the outstanding shares of the Corporation entitled to
vote at any meeting of stockholders shall constitute a quorum for
the transaction of business. The vote of the holders of a
majority of the shares of the Corporation's stock entitled to
vote, present in person or represented by proxy, shall be binding
on all stockholders of the Corporation, unless the vote of a
greater number is required by the DGCL or the Amended and
Restated Certificate of Incorporation or these Amended and
Restated Bylaws. The stockholders present at a duly called or
held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
In the absence of a quorum, stockholders holding a majority
of the shares present in person or by proxy and entitled to vote,
regardless of whether or not they constitute a quorum, or if no
stockholders are present, the presiding officer may adjourn the
meeting to another time and place. Any business that might have
been transacted at the original meeting may be transacted at any
adjourned meeting at which a quorum is present. No notice of an
adjourned meeting need be given if the time and place are
announced at the meeting at which the adjournment is taken except
that, if adjournment is for more than thirty (30) days or if,
after the adjournment, a new record date is fixed for the
meeting, notice of the adjourned meeting shall be given pursuant
to Section 4 of this Article II.
Meetings of the stockholders shall be presided over by the
Chairman of the Board, or in his absence by the President of the
Corporation, or in the absence of the foregoing persons by a
presiding officer designated by the Board of Directors, or in the
absence of such designation, by a presiding officer chosen at the
meeting. The Secretary of the Corporation shall act as secretary
of the meeting, but in the absence of the Secretary, the
presiding officer may appoint any person to act as secretary of
the meeting. At any meeting of the stockholders, only such
business shall be conducted as shall have been properly brought
before such meeting, in accordance with the Amended and Restated
Certificate of Incorporation.
SECTION 7. VOTING; PROXIES. Each stockholder of record
on the record date, as determined pursuant to Section 6 of
Article VII, shall be entitled to one vote for every share
registered in his name, except as otherwise provided in the
Amended and Restated Certificate of Incorporation of the
Corporation, as amended or restated from time to time. All
elections of directors shall be by written ballot.
Each stockholder entitled to vote at any meeting of
stockholders (or to express consent to or dissent from corporate
action in writing without a meeting) may authorize another person
to act for him by proxy. No proxy shall be valid after three
years from its date of execution, unless the proxy provides for a
longer period.
Such proxy shall be in writing and shall be filed with the
Secretary of the Corporation before or at the time of the meeting
(or giving of such written consent, as the case may be).
Execution of a writing authorizing another person or persons to
act as proxy may be accomplished by the stockholder (or his or
her authorized officer, director, employee or agent) signing such
writing, or causing his signature to be affixed to such writing
by any reasonable means, including by facsimile signature.
A stockholder may authorize another person or persons to act
for him as proxy by transmitting or authorizing the transmission
of a telegram, cablegram or other means of electronic
transmission to the person who will be the holder of the proxy or
to a proxy solicitation firm, proxy support service organization
or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that
any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with
information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the
stockholder. A stockholder may also vote by means of a proxy
which has been executed by him or his duly authorized agent if
both sides of the proxy instrument have been telecopied to the
inspectors or, if there are not inspectors, to such other
authorized person or persons.
SECTION 8. INSPECTORS OF ELECTION.
(a) In advance of any meeting of stockholders, the Board of
Directors may appoint inspectors of election to act at each
meeting of stockholders and any adjournment thereof. If
inspectors of election are not so appointed, the presiding
officer of the meeting may, and upon the request of any
stockholder or his proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one or
three. If appointed at the meeting upon the request of one or
more stockholders or proxies, the vote of the holders of a
majority of shares present shall determine whether one or three
inspectors are appointed. In any case, if any person appointed
as an inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment made by the directors in
advance of the convening of the meeting or at the meeting by the
person acting as presiding officer.
(b) The inspectors of election shall, based upon the list
of stockholders produced at the meeting of stockholders in
accordance with Section 9 of this Article II, determine the
outstanding stock of the Corporation, the stock represented at
the meeting and the existence of a quorum, shall receive votes,
ballots, or consents, shall count and tabulate all votes and
shall determine the result; and in connection therewith, the
inspector shall determine the authority, validity and effect of
proxies, hear and determine all challenges and questions, and do
such other ministerial acts as may be proper to conduct the
election or vote with fairness to all stockholders. If there are
three inspectors of election, the decision, act or certificate of
a majority is effective in all respects as the decision, act or
certificate of all. If no inspectors of election are appointed,
the Secretary shall pass upon all questions and shall have all
other duties specified in this Section.
(c) Upon request of the chairman of the meeting or any
stockholder or his proxy, the inspector(s) of election shall make
a report in writing of any challenge or question or other matter
determined by him and shall execute a certificate of any fact
found in connection therewith. Any such report or certificate
shall be filed with the record of the meeting.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The
officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, and showing the address of each
stockholder and the number of shares registered in the name of
each stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days
prior to the meeting, at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of
the stockholders, the corporate books, or to vote at any meeting
of the stockholders.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of
its own stock belonging to the Corporation, unless held by it in
a fiduciary capacity, shall not be voted, directly or indirectly,
at any meeting, and shall not be counted in determining the total
number of outstanding shares at any given time. Shares standing
in the name of another corporation, domestic or foreign, may be
voted by such officer, agent or proxy as the bylaws of such
corporation may prescribe or, in the absence of such provision,
as the board of directors of such corporation may determine.
Persons holding stock in a fiduciary capacity shall be entitled
to vote the shares so held. Persons whose stock is pledged shall
be entitled to vote, unless in the transfer by the pledgor on the
books of the Corporation the pledgor expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or
pledgee's proxy, may represent such stock and vote thereon.
SECTION 11. VOTING BY BALLOT. Any question or election at
a meeting of the stockholders may be decided by voice vote unless
the presiding officer of the meeting shall order that the voting
be by ballot, unless otherwise provided in the Amended and
Restated Certificate of Incorporation of the Corporation, or
unless otherwise required by the DGCL.
SECTION 12. STOCKHOLDER ACTION. Any action which may be
taken by the stockholders at any annual or special meeting of the
stockholders of the Corporation may be taken without a meeting,
without prior notice (including, without limitation, any notice
required to be given pursuant to Section B of Article VI of the
Amended and Restated Certificate of Incorporation of the
Corporation if such action were taken at any annual or special
meeting of stockholders) and without a vote of stockholders, if a
consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered
office, its principal place of business, or any officer or agent
of the Corporation having custody of the books in which
proceedings of the meetings of stockholders are recorded.
ARTICLE III
DIRECTORS
SECTION 1. RESIGNATIONS. Any director may resign at any
time by giving written notice to the Board of Directors. Such
resignation shall take effect at the time specified therein; and,
unless tendered to take effect upon acceptance thereof, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 2. REGULAR MEETINGS. A regular meeting of the
Board of Directors shall be held, without other notice than this
Section 2, immediately after and at the same place as the annual
meeting of stockholders. In the event such meeting is not held
at such time and place, the meeting may be held at such time and
place as shall be specified in a notice given as provided below
with respect to special meetings of the Board of Directors, or as
shall be specified in a written waiver signed by all of the
directors. The Board of Directors may provide, by resolution,
the time and place, either within or without the State of
Delaware, for the holding of additional regular meetings without
other notice than such resolution.
SECTION 3. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by or at the request of the
Chairman of the Board, the President, or a majority of the
directors. The person or persons authorized to call special
meetings of the Board of Directors may, within the notice of such
meetings, designate the time and place, either within or without
the State of Delaware, as the time and place for holding any
meeting of the Board of Directors called by them. In the absence
of such a designation, the place of meeting shall be the
Corporation's principal place of business.
SECTION 4. BUSINESS OF MEETINGS. Except as otherwise
expressly provided in these Amended and Restated Bylaws, any and
all business may be transacted at any meeting of the Board of
Directors.
SECTION 5. NOTICE OF SPECIAL MEETINGS. Notice of any
meeting of the Board of Directors shall be given at least twenty-
four (24) hours previous thereto by prior written notice to each
director at his principal place of business. Notice may be
delivered or given in any manner allowed under Delaware law,
including by facsimile transmission to the facsimile number of
the director which appears in the records of the Corporation.
For purposes of the facsimile transmission, the recipient may
rely upon the facsimile signature of any proper officer who may
provide such notice, as provided by Delaware law or these Amended
and Restated Bylaws, unless and until notice is received that
such signature has been revoked.
SECTION 6. WAIVER OF NOTICE. A written waiver of
notice, signed by a director entitled to notice of a meeting of
the Board of Directors, or of a committee of such Board of which
the director is a member, whether before or after the time of the
meeting, shall be deemed equivalent to the giving of such notice
to that director. Attendance of a director at a meeting of the
Board of Directors, or of a committee of such Board of which the
director is a member, shall constitute a waiver of notice of such
meeting, except when the director attends the meeting for the
express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 7. ATTENDANCE BY TELEPHONE. Directors may
participate in meetings of the Board of Directors by means of
conference telephone or similar communications equipment by means
of which all directors participating in the meeting can hear one
another, and such participation shall constitute presence in
person at the meeting.
SECTION 8. QUORUM AND MANNER OF ACTING; ADJOURNMENT. A
majority of the directors shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors
and the act of a majority of the directors present at any meeting
at which a quorum is present shall be the act of the Board.
SECTION 9. INFORMAL ACTION BY DIRECTORS. Any action which
could be taken at a meeting of the Board of Directors may be
taken without a meeting if all of the directors consent to the
action in writing and the writing or writings are filed with the
minutes of proceedings of the Board.
SECTION 10. PRESUMPTION OF ASSENT. A director of the
Corporation who is present at duly convened meeting of the Board
of Directors, or any committee of such Board, at which action on
any corporate matter is taken, shall be conclusively presumed to
have assented to the action taken unless such director's dissent
shall be entered in the Minutes of the meeting, or unless such
director shall file a written dissent to such action with the
person acting as the Secretary of the meeting before adjournment
of meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 11. FILLING OF VACANCIES. A vacancy or vacancies
in the board of directors shall exist when any previously
authorized position of director is not then filled by a duly
elected director, whether caused by death, resignation or
removal. Vacancies shall be filled as provided in the Amended
and Restated Certificate of Incorporation of the Corporation.
SECTION 12. COMPENSATION OF DIRECTORS. The directors may
be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and at each meeting of a committee of the
Board of Directors of which they are members. The Board of
Directors, irrespective of any personal interest of any of its
members, shall have the authority to fix the compensation of
directors, unless otherwise provided in the Amended and Restated
Certificate of Incorporation of the Corporation.
SECTION 13. PRESIDING OFFICER. The presiding officer at
any meeting of the Board of Directors shall be the Chairman of
the Board, or in his absence, the President of the Corporation,
or in the absence of the foregoing persons, any other director
elected by vote of a majority of the directors present at the
meeting.
SECTION 14. INTERESTED DIRECTORS OR OFFICERS. No contract
or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
Corporation, partnership, association or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at, or participates in the meeting of the Board or
committee thereof, which authorizes the contract or transaction,
or because his or their votes are counted for such purposes, if:
(a) the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested
directors be less than a quorum; or
(b) the material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good
faith by vote of the stockholders; or
(c) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof, or
the stockholders.
Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors, or
of a committee which authorizes the contract or transaction.
ARTICLE IV
COMMITTEES
SECTION 1. APPOINTMENT AND POWERS. The Board of Directors
may, by resolutions passed by a majority of the whole board,
designate one or more committees, each committee to consist of
one or more of the directors of the Corporation which, to the
extent provided in said resolution or in these Amended and
Restated Bylaws, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it. Not withstanding the foregoing, no committee shall
have the power or authority to:
(a) amend the Amended and Restated Certificate of
Incorporation of the Corporation, as amended or restated from
time to time, except that any such committee may, to the extent
authorized in the resolution or resolutions adopted by the Board
of Directors provide for the issuance of shares of stock by the
Corporation;
(b) adopt an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of
all, or substantially all, of the Corporation's property and
assets;
(c) recommend to the stockholders the sale, lease or
exchange of all, or substantially all, of the Corporations
property and assets;
(d) recommend to the stockholders a dissolution of the
Corporation, or a revocation thereof;
(e) declare a dividend; or
(f) amend the Amended and Restated Bylaws.
SECTION 2. RECORD OF PROCEEDINGS. Each committee shall
keep regular minutes of its proceedings, and, when required by
the Board of Directors, shall report the same to the Board of
Directors.
ARTICLE V
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation may
consist of the Chairman of the Board, the President, one or more
Vice Presidents (the number thereof to be determined by the Board
of Directors), the Secretary, the Treasurer and such Assistant
Secretaries and Assistant Treasurers, or any other officers
thereunto authorized or elected by the Board of Directors. Any
two or more offices may be held by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected by the Board of Directors at their
first meeting and thereafter at any subsequent meeting and shall
hold their offices for such term as determined by the Board of
Directors. Each officer shall hold office until his successor is
duly elected and qualified, or until his death or disability, or
until he resigns or is removed from his duties in the manner
hereinafter provided.
SECTION 3. REMOVAL AND RESIGNATION. Any officer may be
removed, either with or without cause, by a majority of the
directors then in office, at any meeting of the Board of
Directors, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer
may resign at any time by giving written notice to the Board of
Directors, the President, or the Secretary. Any such resignation
shall take effect at the date of the receipt of such notice or at
any later time specified therein, and, unless tendered to take
effect upon acceptance thereof, the acceptance of such
resignation shall not be necessary to make it effective;
provided, however, that the acceptance, or deemed acceptance, of
such resignation by the Corporation shall be without prejudice to
the contract rights, if any, of the Corporation with respect to
such person so resigning.
SECTION 4. VACANCIES. A vacancy in any office because of
death, resignation or removal or any other cause may be filled
for the unexpired portion of the term by the Board of Directors.
SECTION 5. CHAIRMAN OF THE BOARD. The Chairman of the Board
of the Corporation shall preside at all meetings of the Board of
Directors, and at all stockholders' meetings whether annual or
special, at which he is present, and shall exercise such other
powers and perform such other duties as the Board of Directors
may from time to time assign to him or as may be prescribed by
these Amended and Restated Bylaws. Except in those instances in
which the authority to execute is expressly delegated to another
officer or agent of the Corporation, or a different mode of
execution is expressly prescribed by the Board of Directors or
these Amended and Restated Bylaws, the Chairman of the Board may
execute for and on behalf of the Corporation certificates for its
shares and any contracts, deeds, mortgages, bonds, or other
instruments which the Board of Directors has properly authorized,
and he may execute said instruments under or without the seal of
the Corporation, either individually or with the Secretary, any
Assistant Secretary, or any other officer thereunto authorized by
the Board of Directors, in accordance with the requirements of
the form of the instruments to be executed.
SECTION 6. PRESIDENT. The President shall be the Chief
Executive Officer of the Corporation. Subject to the direction
and control of the Board of Directors, the President shall be in
charge of the business of the Corporation; he shall see that the
resolutions and directions of the Board of Directors are
effectuated, except in those instances in which that
responsibility is specifically assigned to some other person by
the Board of Directors; and in general, he shall discharge all
duties incident to the office of President and such other duties
as may be prescribed by the Board of Directors from time to time.
In the event that the Chairman of the Board is absent from an
annual or special meeting of the stockholders, the president may
preside at such meeting in the place of, and instead, of the
Chairman of the Board, provided, however that the Board of
Directors must expressly approve the President's power to so act
in place of the Chairman at any stockholders' meeting in each and
every circumstance. Except in those instances in which the
authority to execute is expressly delegated to another officer or
agent of the Corporation, or a different mode of execution is
expressly prescribed by the Board of Directors or these Amended
and Restated Bylaws the President may execute for the Corporation
certificates for its shares and any contracts, deeds, mortgages,
bonds, or other instruments which the Board of Directors has
properly authorized, and he may execute said instruments under or
without the seal of the Corporation, either individually or with
the Secretary, any Assistant Secretary, or any other officer
thereunto authorized by the Board of Directors, in accordance
with the requirements of the form of the instruments to be
executed. He may vote all securities which the Corporation is
entitled to vote, except to the extent such authority shall be
vested in a different officer or agent of the Corporation by the
Board of Directors.
SECTION 7. VICE PRESIDENT. The Vice President (or in the
event there be more than one Vice President, each of the Vice
Presidents), if any, shall assist the President in the discharge
of his duties, as the President may direct, and shall perform
such other duties as from time to time may be assigned to him by
the President or by the Board of Directors. In the absence of
the President, or in the event of his inability or refusal to
act, the Vice President (or in the event there be more than one
vice President, the Vice President designated by the Board of
Directors, or by the President, if the Board of Directors has not
made such a designation, or in the absence of any designation,
then in the order of seniority of tenure as Vice President) shall
perform the duties of the President, and when so acting, shall
have the powers of, and be subject to, all the restrictions upon
the President. Except in those instances in which the authority
to execute is expressly delegated to another officer or agent of
the Corporation, or a different mode of execution is expressly
prescribed by the Board of Directors or these Amended and
Restated Bylaws, the Vice President (or each of them, if there
are more than one) may execute for the Corporation certificates
for its shares and any contracts, deeds, mortgages, bonds, or
other instruments which the Board of Directors has properly
authorized, and he may execute said instruments either under or
without the seal of the Corporation, and either individually or
with the Secretary, any Assistant Secretary, or any other officer
thereunto authorized by the Board of Directors, according to the
requirements of the form of the instruments to be executed.
SECTION 8. TREASURER. The Treasurer performs all the
duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the President.
Without limiting the foregoing, the Treasurer shall:
(a) have charge and custody of, and be responsible for, the
adequate maintenance of the books and records of the
Corporation;
(b) have charge and custody of all funds and securities of
the Corporation, and be responsible therefor and for the
receipt and disbursement thereof; and
(c) deposit all funds and securities of the Corporation in
such banks, trust companies and other depositories as shall
be selected in accordance with these Amended and Restated
Bylaws. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of
his duties in such sum and with such surety or sureties as
the Board of Directors may determine.
SECTION 9. SECRETARY. The Secretary shall:
(a) record the minutes of the stockholders and of the Board
of Directors meetings in one or more books provided for that
purpose;
(b) see that all notices are duly given in accordance with
the provisions of these Amended and Restated Bylaws or as
required by the DGCL;
(c) be custodian of the corporate books and records and of
the seal of the Corporation;
(d) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by
such stockholder;
(e) sign with the Chairman of the Board, or the President,
or a Vice President, or any other officer thereunto properly
authorized by the Board of Directors, certificates for the
shares of the Corporation, the issue of which shall gave
been authorized by the Board of Directors, and any
contracts, deeds, mortgages, bonds, or other instruments
which the Board of Directors has authorized to be executed
according to the requirements of the form of the instrument,
except when a different mode of execution is expressly
prescribed by the Board of Directors or these Amended and
Restated Bylaws;
(f) have general charge of the stock-transfer books of the
Corporation;
(g) perform all duties incident to the office of the
Secretary and such other duties as from time to time may be
assigned to him by the President or by the Board of
Directors.
SECTION 10. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
The Assistant Treasurers and Assistant Secretaries shall perform
such duties as shall be assigned to them by the Board of
Directors. When the Secretary is unavailable, any Assistant
Secretary may sign with the President, or a Vice President, or
any other office thereunto authorized by the Board of Directors,
any contracts deeds, mortgages, bonds, or other instruments,
according to the requirements of the form of the instrument,
except when a different mode of execution is expressly prescribed
by the Board of Directors or these Amended and Restated Bylaws.
The Assistant Treasurers shall, respectively, if required by the
Board of Directors, give for the faithful discharge of their
duties in such sums and with such surety or sureties as the Board
of Directors may determine.
SECTION 11. SALARIES. The salaries and additional
compensation, if any, of the officers shall be fixed from time to
time by the Board of Directors and no officer shall be prevented
from receiving such salary and additional compensation, if any,
by reason of the fact that he is also a director of the
Corporation.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and
on behalf of the Corporation and such authority may be general or
confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of
the Corporation and no evidences of indebtedness shall be issued
in its name, unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific
instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation, shall be
signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies, or
other depositories as the Board of Directors may select.
SECTION 5. STOCK IN OTHER CORPORATIONS. Shares of any other
corporation which may from time to time be held by the
Corporation may be represented and voted by the President, or by
any proxy appointed in writing by the President, or by any other
person or persons thereunto authorized by the Board of Directors,
at any meeting of the stockholders of such corporation, or by
executing written consents with respect to such shares, where
stockholder action may be taken by written consent. Shares
represented by certificates standing in the name of the
Corporation may be endorsed for sale or transfer in the name of
the Corporation by the President or by any other person or
persons thereunto authorized by the Board of Directors. Shares
belonging to the Corporation need not stand in the name of the
Corporation, but may be held for the benefit of the Corporation
in the name of any nominee designated for such purpose by the
Board of Directors.
ARTICLE VII
CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 1. STOCK RECORD AND CERTIFICATES. Records shall be
kept by or on behalf of the Corporation which shall contain the
names and addresses of stockholders, the number of shares held by
them respectively, and the number of certificates, if any, repre-
senting the shares, and in which there shall be recorded all
transfers of shares. Every stockholder shall be entitled to a
certificate signed by the Chairman of the Board of Directors, or
the President or a Vice President, and by the Secretary or an
Assistant Secretary of the Corporation, certifying the class and
number of shares owned by him in the Corporation, provided that
any and all signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, the certificate may be issued
by the Corporation with the same effect as if such officer,
transfer agent or registrar was acting in such capacity at the
date of issue.
SECTION 2. TRANSFER AGENTS AND REGISTRARS. The Board of
Directors may, in its discretion, appoint one or more responsible
banks, trust companies or other institutions as the Board of
Directors may deem advisable, from time to time, to act as
transfer agents and registrars of shares of the Corporation; and,
when such appointments shall have been made, no certificate for
shares of the Corporation shall be valid until countersigned by
one of such transfer agents and registered by one of such
registrars.
SECTION 3. STOCKHOLDERS' ADDRESSES. Every stockholder, or
transferee, shall furnish the Secretary, or a transfer agent,
with the address to which notice of meetings and all other
notices may be served upon or mailed to such stockholder or
transferee, and in default thereof, such stockholder or
transferee shall not be entitled to service or mailing of any
such notice.
SECTION 4. LOST CERTIFICATES. In case any certificate for
shares of the Corporation is lost, stolen or destroyed, the Board
of Directors, in its discretion, or any transfer agent duly
authorized by the Board of Directors, may authorize the issue of
a substitute certificate in place of the certificate so lost,
stolen, destroyed. The Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction
of any such certificate, or the issuance of such new certificate
or uncertified shares.
SECTION 5. DISTRIBUTIONS TO STOCKHOLDERS. To the extent
permitted by the DGCL, and subject to any restrictions contained
in the Amended and Restated Certificate of Incorporation of the
Corporation, as amended or restated from time to time, the Board
of Directors may declare and pay dividends upon the shares of its
capital stock in the manner and upon the terms and conditions
provided by the DGCL and the Amended and Restated Certificate of
Incorporation of the Corporation, as amended or restated from
time to time. Dividends may be paid in cash, in property, or in
shares of the Corporation's capital stock.
SECTION 6. RECORD DATES. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders, or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of shares, or for
the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which record date shall, in
the case of any meeting of stockholders, be not more than 60, nor
less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the
date next preceding the day on which notice is given or, if
notice is waived, at the close of business on the date next
preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of, or to vote at, a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Only those who shall be stockholders of record on the record
date fixed in accordance with this Section 6 shall be entitled to
notice of, and to vote at, such meeting and any adjournment of
such meeting, or to receive payment of such dividend or other
distribution, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding the
transfer of any stock on the books of the Corporation after the
applicable record date.
SECTION 7. TRANSFERS OF SHARES. Subject to any limitations
contained in the Amended and Restated Certificate of
Incorporation of the Corporation, the shares of the Corporation
shall be transferable. The Corporation shall have a duty to
register any such transfer provided that the following is
presented to the Corporation or its transfer agents:
(a) the stock certificate endorsed by the appropriate
person or persons; and
(b) reasonable assurance that such endorsement is genuine
and effective; and, provided that (i) the Corporation has no duty
to inquire into adverse claims or has discharged any such duty;
(ii) any applicable law relating to the collection of taxes has
been complied with; and (iii) the transfer is in fact rightful or
is being made to a bona fide purchaser.
Upon registration of such transfer on the stock transfer
books of the corporation, the certificates representing the
shares transferred shall be cancelled and the new record holder,
upon request, shall be entitled to a new certificate or
certificates. The terms and conditions described in the
foregoing provisions of this Section 7 shall be construed in
accordance with the provisions of the Delaware Uniform Commercial
Code, except as otherwise provided by the DGCL. No new
certificate shall be issued until the former certificate or
certificates for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost,
destroyed, wrongfully taken or mutilated certificate, a new one
may be issued therefor upon such terms and indemnity to the
Corporation as the President or the Board of Directors may
prescribe consistent with applicable law and Section 4 of this
Article VII.
SECTION 8. REPURCHASE OF SHARES ON OPEN MARKET. The
Corporation may purchase its shares on the open market and invest
its assets in its own shares, provided that in each case the
consent of the Board of Directors shall have been obtained.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the
Board of Directors
ARTICLE IX
SEAL
The corporate seal may have inscribed thereon the name of
the Corporation and the words "Corporate Seal" and "Delaware".
The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given under the
Amended and Restated Bylaws, the Amended and Restated Certificate
of Incorporation of the Corporation, as amended or restated from
time to time, or the DGCL, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to the
giving of such notice.
ARTICLE XI
SEVERABILITY
If any provision of these Amended and Restated Bylaws, or
its application of a provision to any person or circumstances, is
held invalid, the remainder of these Amended and Restated Bylaws
and the application of such provision to other persons or
circumstances shall not be affected by such invalidity.
ARTICLE XII
AMENDMENTS
Unless otherwise provided in the Amended and Restated
Certificate of Incorporation of the Corporation, as amended or
restated from time to time, these Amended and Restated Bylaws be
altered, amended or repealed or new Bylaws may be adopted by
affirmative vote of a majority of the Board of Directors at any
regular or special meeting of the board. The stockholders
entitled to vote shall have the right to change or repeal any
bylaws adopted or by the directors at an annual meeting or any
special meeting called for that purpose or by written consent in
lieu of an annual or special meeting. The Amended and Restated
Bylaws may contain any provisions for the regulation and
management of the affairs of the Corporation not inconsistent
with the DGCL or the Amended and Restated Certificate of
Incorporation of the Corporation, as amended or restated from
time to time.