EXHIBIT 3.50
BYLAWS
OF
PINNACLE GAMING DEVELOPMENT CORP.
ARTICLE I
Offices
-------
Section 1. Offices:
- -------------------
The principal office of the Corporation shall be at Suite 755, 50 South
Steele Street, in the City of Denver, County of Denver, State of Colorado, and
the Corporation shall have other offices at such places as the Board of
Directors may from time to time determine.
ARTICLE II
Shareholders' Meetings
----------------------
Section 1. Place:
- -----------------
The place of shareholders' meetings shall be the principal office of the
Corporation unless some other place either within or without the State of
Colorado shall be determined and designated from time to time by the Board of
Directors.
Section 2. Annual Meeting:
- --------------------------
The annual meeting of the shareholders of the Corporation for the election
of directors to succeed those whose terms expire, and for the transaction of
such other business as may properly come before the meeting, shall be held each
year on the last day of November beginning in the year 1994. If the annual
meeting of the shareholders be not held, or if held and directors shall not have
been elected for any reason, then the election of directors may be held at any
meeting of shareholders thereafter called pursuant to these Bylaws and the laws
of Colorado.
Section 3. Special Meetings:
- ----------------------------
Special meetings of the shareholders for any purpose or purposes may be
called by the President, the Board of Directors, or the holders of ten percent
or more of all the shares entitled to vote at such meeting, by the giving of
notice in writing as hereinafter described.
Section 4. Voting:
- ------------------
At all meetings of shareholders, voting may be viva voce; but any qualified
voter may demand a stock vote, whereupon such vote shall be taken by ballot and
the Secretary shall record the name of the shareholder voting, the number of
shares voted, and, if such vote shall be by proxy, the name of the proxy holder.
Voting may be in person or by proxy
appointed in writing, manually signed by the shareholder or his duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from the date of
its execution, unless otherwise provided therein.
Each shareholder shall have such rights to vote as the Articles of
Incorporation provide for each share of stock registered in his name on the
books of the Corporation, except where the transfer books of the Corporation
shall have been closed or a date shall have been fixed as a record date, not to
exceed, in any case, fifty days preceding the meeting, for the determination of
shareholders entitled to vote. The Secretary of the Corporation shall make, at
least ten days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each, which list, for a Period of ten days prior to such meeting, shall
be kept on file at the principal office of the Corporation and shall be subject
to inspection by any shareholder for any purpose germane to the meeting at any
time during usual business hours. Such list shall also be produced and kept open
at the time and place of the meeting and shall be subject to the inspection of
any shareholder for any purpose germane to the meeting during the whole time of
the meeting.
Section 5. Order of Business:
- -----------------------------
The order of business at any meeting of shareholders shall be as follows:
1. Calling the meeting to order.
2. Calling of roll.
3. Proof of notice of meeting.
4. Report of the Secretary of the stock represented at the meeting
and the existence or lack of a quorum.
5. Reading of minutes of last previous meetings and disposal of any
unapproved minutes.6. Reports of officers.
7. Reports of committee.
8. Election of directors, if appropriate.
9. Unfinished business.
10. New business.
11. Adjournment.
To the extent that these Bylaws do not apply, Roberts' Rules of Order shall
prevail.
-2-
Section 6. Notices:
- -------------------
Written or printed notice stating the place, day, and hour of the meeting
and, in case of a special meeting, the purpose or purposes for which the meeting
is called, shall be delivered not less than ten nor more than fifty days before
the date of the meeting, either personally or by mail, by or at the direction of
the President, the Secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting, except that, if the
authorized capital stock is to be increased, at least thirty days' notice shall
be given. Notice to shareholders of record, if mailed, shall be deemed delivered
as to any shareholder of record when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage prepaid. If three successive letters
mailed to the last-known address of any shareholder of record are returned as
undeliverable, no further notices to such shareholder shall be necessary until
another address for such shareholder is made known to the Corporation.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each shareholder of record entitled
to vote at the meeting.
Section 7. Quorum:
- ------------------
A quorum at any annual or special meeting shall consist of the
representation in person or by proxy of a majority in number of the shares of
outstanding capital stock of the Corporation entitled to vote at such meeting,
and the vote of a majority of the quorum shall be the act of the shareholders
unless the vote of a greater number, or voting by classes, is required by the
Colorado Corporation Code or the Articles of Incorporation. In the event a
quorum be not present, the meeting may be adjourned by those present for a
period not to exceed sixty days at any one adjournment. The shareholders
entitled to vote, present either in person or by proxy at such adjourned
meeting, shall, if equal to one-half of the shares entitled to vote at the
meeting, constitute a quorum, and the vote of a majority of the quorum shall be
the act of the shareholders at such adjourned meeting unless the vote of a
greater number, or voting by classes, is required by the Colorado Corporation
Code or the Articles of Incorporation.
Section 8. Action by Shareholders Without a Meeting:
- ----------------------------------------------------
Any action required to be or which may be taken at a meeting of the
shareholders of the Corporation may be taken without a meeting if one or more
written consents setting forth the action so taken is signed by all of the
shareholders entitled to vote with respect to the subject matter thereof, and
delivered to the Secretary of the Corporation for inclusion in the corporate
records. Such action is effective when all shareholders entitled to vote have
signed the consent, unless the consent specifies a different effective date.
-3-
ARTICLE III
Board of Directors
------------------
Section 1. Organization and Powers:
- -----------------------------------
The Board of Directors shall constitute the policy-making or legislative
authority of the Corporation. Management of the affairs, property, and business
of the Corporation shall be vested in the Board of Directors, which shall
consist of not less than three nor more than seven members, who shall be elected
at the annual meeting of shareholders by a plurality vote for a term of one
year, and shall hold office until their successors are elected and qualify.
Directors need not be shareholders of the Corporation nor residents of Colorado.
Directors shall have all powers with respect to the management, control, and
determination of policies of the Corporation that are not limited by these
Bylaws, the Articles of Incorporation, or the statutes of the State of Colorado,
and the enumeration of any power shall not be considered a limitation thereof.
Section 2. Vacancies:
- ---------------------
Any vacancy in the Board of Directors, however caused or created, shall be
filled by the affirmative vote of a majority of the remaining directors, though
lose than a quorum of the Board, or at a special meeting of the shareholders
called for that purpose. The directors elected to fill vacancies shall hold
office for the unexpired term and until their successors are elected and
qualify.
Section 3. Regular Meetings:
- ----------------------------
A regular meeting of the Board of Directors shall be held, without other
notice than this Bylaw, immediately after and at the same place as the annual
meeting of shareholders or any special meeting of shareholders at which a
director or directors shall have been elected. The Board of Directors may
provide by resolution the time and place, either within or without the State of
Colorado, for the holding of additional regular meetings without other notice
than such resolution.
Section 4. Special Meetings:
- ----------------------------
Special Meetings of the Board of Directors may be held at the principal
office of the Corporation, or such other place as may be fixed by resolution of
the Board of Directors for such purpose, at any time on call of the President or
of any member of the Board, or may be held at any time and place without notice,
by unanimous written consent of all the members, or with the presence and
participation of all members at such meeting.
Section 5. Notices:
- -------------------
Notices of both regular and special meetings, save when held by unanimous
consent or participation, shall be mailed by the Secretary to each member of the
Board not less than ten days before any such meeting and notices of special
meetings may state the purposes thereof. No failure or irregularity of notice of
any regular meeting shall invalidate such meeting or any proceeding thereat.
-4-
Section 6. Quorum and Manner of Acting:
- ---------------------------------------
A quorum for any meeting of the Board of Directors shall be a majority of
the Board of Directors as then constituted. Any act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. Any action of such majority, although not at a regularly
called meeting, and the record thereof, if assented to in writing by all of the
other members of the Board, shall always be as valid and effective in all
respects as if otherwise duly taken by the Board of Directors.
Section 7. Committees:
- ----------------------
The Board of Directors may, by resolution of a majority of the full Board,
designate two or more directors to constitute an Executive Committee and one or
more other committees, each of which shall have and may exercise, to the extent
provided in such resolution, all of the authority of the Board of Directors in
the management of the Corporation, except that no such committee shall have the
authority to declare dividends or distributions; approve or recommend to
shareholders actions or proposals required by the Colorado Corporation Code to
be approved by shareholders; fill vacancies on the Board of Directors or any
committee thereof; amend the Corporation's Bylaws; approve a plan of merger not
requiring shareholder approval; reduce earned or capital surplus; authorize or
approve the reacquisition of shares unless pursuant to a general formula or
method specified by the Board of Directors pursuant to the Colorado Corporation
Code; or authorize or approve the issuance or sale of, or any contract to issue
or sell, shares or designate the terms of a series of a class of shares.
Neither the designation of any such committee, the delegation of authority
to such committee, nor any action by such committee, the delegation of authority
to such committee, nor any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the Board of Directors, nor a
member of the committee in question, with his responsibility to act in good
faith, in a manner he reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person in like position
would use under similar circumstances.
Section 8. Action by Directors Without a Meeting:
- -------------------------------------------------
Any action required to be, or which may be, taken at a meeting of the Board
of Directors, Executive Committee or other committee of the directors, may be
taken without a meeting if one or more written consents setting forth the action
so taken is signed by all directors or committee members entitled to vote with
respect to the subject matter thereof, and delivered to the Secretary of the
Corporation for inclusion in the corporate records. Such action is effective
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date.
Section 9. Order of Business:
- -----------------------------
The order of business at any regular or special meeting of the Board of
Directors, unless otherwise prescribed for any meeting by the Board, shall be as
follows:
1. Reading and disposal of any unapproved minutes.
-5-
2. Reports of officers and committees.
3. Unfinished business.
4. New business.
5. Adjournment.
To the extent that these Bylaws do not apply, Roberts' Rules of Order shall
prevail.
Section 10. Remuneration:
- -------------------------
No stated salary shall be paid to directors for their services as such,
but, by resolution of the Board of Directors, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board. Members of special or standing committees may be allowed
like compensation for attending meetings. Nothing herein contained shall be
construed to preclude any director from receiving compensation for serving the
Corporation in any other capacity, subject to such resolutions of the Board of
Directors as may then govern receipt of such compensation.
ARTICLE IV
Officers
--------
Section 1. Titles:
- ------------------
The officers of the Corporation shall consist of a President, a Secretary,
and a Treasurer, each of whom shall be elected for one year by the directors at
their first meeting following the annual meeting of shareholders. Such officers
shall hold office until their successors are elected and qualify. The Board of
Directors may from time to time elect or appoint such other officers and
assistant officers as it deems necessary, each of whom shall serve during such
terms as may be fixed by the Board at a duly held meeting. Any two or more
offices may be held by the same person except the offices of President and
Secretary.
Section 2. President:
- ---------------------
The President shall preside at all meetings of shareholders and, in the
absence of a, or the, Chairman of the Board of Directors, at all meetings of the
directors. He shall be generally vested with the power of the chief executive
officer of the Corporation and shall countersign all certificates, contracts,
and other instruments of the Corporation as authorized by the Board of Directors
or required by law. He shall make reports to the Board of Directors and
shareholders and shall perform such other duties and services as may be required
of him from time to time by the Board of Directors.
Section 3. Vice President.
- --------------------------
If a Vice President is elected or appointed, or if more than one Vice
President is elected, the Vice President bearing the title of "Senior" or
Executive" Vice President, or similar title, shall perform all the duties of the
President if the President is absent or for any
-6-
reason is unable to perform his duties and shall have such other duties as the
Board of Directors shall authorize or direct.
Section 4. Secretary:
- ---------------------
The Secretary shall issue notices of all meetings of shareholders and
directors, shall keep minutes of all such meetings, and shall record all
proceedings. He shall have custody and control of the corporate records and
books, excluding the books of account, together with the corporate seal. He
shall make such reports and perform such other duties as may be consistent with
his office or as may be required of him from time to time by the Board of
Directors.
Section 5. Treasurer:
- ---------------------
The Treasurer shall have custody of all monies and securities of the
Corporation and shall have supervision over the regular books of account. He
shall deposit all monies, securities, and other valuable effects of the
Corporation in such banks and depositaries as the Board of Directors may
designate and shall disburse the funds of the Corporation in payment of just
debts and demands against the Corporation, or as they may be ordered by the
Board of Directors, shall render such account of his transactions as may be
required of him by the President or the Board of Directors from time to time and
shall otherwise perform such duties as may be required of him by the Board of
Directors.
The Board of Directors may require the Treasurer to give a bond
indemnifying the Corporation against larceny, theft, embezzlement, forgery,
misappropriation, or any other act of fraud or dishonesty resulting from his
duties as Treasurer of the Corporation, which bond shall be in such amount as
appropriate resolution or resolutions of the Board of Directors may require.
Section 6. Vacancies or Absences:
- ---------------------------------
If a vacancy in any office arises in any manner, the directors then in
office may choose, by a majority vote, a successor to hold office for the
unexpired term of the officer. If any officer shall be absent or unable for any
reason to perform his duties, the Board of Directors, to the extent not
otherwise inconsistent with these Bylaws, may direct that the duties of such
officer during such absence or inability shall be performed by such other
officer or subordinate officer as seems advisable to the Board.
Section 7. Compensation:
- ------------------------
No officer shall receive any salary or compensation for his services unless
and until the Board of Directors authorizes and fixes the amount and terms of
such salary or compensation.
-7-
ARTICLE V
Stock
-----
Section 1. Certificates of Shares:
- ----------------------------------
Each holder of stock of the Corporation shall be entitled to a stock
certificate signed by the President (or Vice President if one is appointed) and
also by the Secretary or an assistant secretary of the Corporation. The
certificates of shares shall be in such form, not inconsistent with the Articles
of Incorporation, as shall be prepared or approved by the Board of Directors.
All certificates shall be consecutively numbered. Each certificate shall state
upon its face that the Corporation is organized under the laws of Colorado; the
name of the person to whom issued; the number and class of shares and the
designation of the series, if any, which such certificate represents; the par
value of each share represented by the certificate, or a statement that the
shares are without par value. The name of the person owning the shares
represented thereby, with the number of such shares and the date of issue, shall
be entered on the Corporation's books, and no certificate shall be valid unless
it be signed by the proper officers as set forth above. The seal of the
Corporation, or a facsimile thereof, may be affixed to the stock certificates.
The signatures of officers as above described on any such certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar both of which may be the Corporation itself or an employee of the
Corporation.
Section 2. New Certificates:
- ----------------------------
All certificates surrendered to the Corporation shall be canceled and no
new certificate shall be issued, except to evidence transfer of stock from the
unissued stock or treasury of the Corporation, or, in the case of a lost
certificate, except upon posting a bond of indemnity in such form and with such
surety or sureties and for such amount as shall be satisfactory to the directors
and upon producing by affidavit or otherwise such evidence of loss or
destruction as the Board may require, until the former certificates for the same
number of shares have been surrendered and canceled.
Section 3. Transfer of Shares:
- ------------------------------
Shares in the capital stock of the Corporation shall be transferred only on
the books of the Corporation by the holder thereof in person, or by his
attorney, upon surrender and cancellation of certificates for a like number of
shares. The delivery of a certificate of stock of this Corporation to a bona
fide purchaser or pledgee for value, together with a written transfer of the
same or a written power of attorney to sell, assign, and transfer the same,
signed by the owner of the certificate, shall be a sufficient delivery to
transfer the title against all persons except the Corporation. No transfer of
stock shall be valid against the Corporation until it shall have been registered
upon the books of the Corporation.
Section 4. Closing of Transfer Books or Provisions for Record Date:
- -------------------------------------------------------------------
For purposes or determining shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of dividends, the stock transfer books may be closed by the
Board of Directors for a period not
-8-
exceeding fifty days prior to such action. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a day not more than fifty days
prior to the holding of any such meeting of shareholders, or payment of
dividends, as the day as of which shareholders entitled to notice of and to vote
at such meeting, or to payment of dividends, as the case may be, shall be
determined.
Section 5. Regulations:
- -----------------------
The Board of Directors shall have power and authority to take all action
they deem expedient concerning the issue, transfer, and registration of
certificates for shares of the capital stock of the Corporation. The Board of
Directors may appoint a transfer agent and a registrar and may require all stock
certificates to bear the signature of such transfer agent or such registrar.
Section 6. Restrictions on Stock:
- ---------------------------------
The Board of Directors may restrict any stock issued by giving the
Corporation or any shareholder "first right of refusal to purchase" the stock,
by making the stock redeemable or by restricting the transfer of the stock,
under such terms and in such manner as the directors may deem necessary and as
are not inconsistent with the Articles of Incorporation or the laws of the State
of Colorado. Any stock so restricted must carry a stamped legend setting out the
restriction or conspicuously noting the restriction and stating where it may be
found in the records of the Corporation.
ARTICLE VI
Dividends and Finances
----------------------
Section 1. Dividends:
- ---------------------
Dividends may be declared by the directors and paid out of any funds
legally available therefor under the laws of Colorado, as may be deemed
advisable from time to time by the Board of Directors of the Corporation. Before
declaring any dividends, the Board of Directors may set aside out of net profits
or earned or other surplus such sums as the Board may think proper as a reserve
fund to meet contingencies or for other purposes deemed proper and to the best
interests of the Corporation.
Section 2. Monies:
- ------------------
The monies, securities, and other valuable effects of the Corporation shall
be deposited in the name of the Corporation in such banks or trust companies as
the Board of Directors shall designate and shall be drawn out or removed only as
may be authorized by the Board of Directors from time to time.
Section 3. Fiscal Year:
- -----------------------
Unless and until the Board of Directors by resolution shall determine
otherwise, the fiscal year shall begin on the last day of the calendar year and
end on the first day of the calendar year and the first fiscal period shall end
December 31, 1993.
-9-
ARTICLE VII
Seal
----
The Board of Directors shall provide a corporate seal which shall be in the
form of a circle and shall have inscribed thereon the name of the Corporation
and the words "SEAL, Colorado," and shall be entrusted in the care of the
Secretary or such other officer of the Corporation as the Board of Directors
shall designate.
ARTICLE VIII
Notices
-------
Section 1. Requirements:
- ------------------------
Whenever a notice shall be required by the statutes of the State of
Colorado or by these Bylaws, such notice may be given in writing by depositing
the same in the United States mails in a postpaid, sealed envelope addressed to
the person for whom such notice is intended to his or her home or other address,
as the same shall appear on the stock transfer books of the Corporation. A
waiver of any notice in writing, signed by a shareholder, director, or officer,
whether before, at, or after the time stated in such waiver for holding a
meeting, shall be deemed the equivalent of duly giving such notice.
Section 2. Waiver:
- ------------------
By attending a meeting, a shareholder: (a) waives objection to lack of
notice or defective notice of such meeting unless the shareholder, at the
beginning of the meeting, objects to the holding of the meeting or the
transacting of business at the meeting; and (b) waives objection to
consideration at such meeting of a particular matter not within the purpose or
purposes described in the meeting notice unless the shareholder objects to
considering the matter when it is presented.
By attending or participating in a regular or special meeting, a director
waives any required notice of such meeting unless the director, at the beginning
of the meeting, objects to the holding of the meeting or the transacting of
business at the meeting.
Section 3. Ratification:
- ------------------------
The ratification or approval in writing of the minutes of any meeting of
shareholders, directors, or officers shall have the same force and effect as if
the ratifying or approving shareholder, director, or officer were present in
person at said meeting.
ARTICLE IX
Amendments
----------
Subject to repeal or change by action of the shareholders, or unless the
shareholders in amending or repealing a particular bylaw expressly provide that
the Board of Directors
-10-
may not amend or repeal such bylaw, these Bylaws may be altered, amended, or
repealed by resolution of a majority of the Board.
ARTICLE X
Indemnification
---------------
Section 1. Definitions:
- ------------------------
For purposes of this Article X, the following terms shall have the meanings
set forth below:
(a) "Corporation" includes the Corporation and any domestic or
foreign predecessor entity of the Corporation in a merger, consolidation,
or other transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(b) "Director" means an individual who is or was a director of the
Corporation and an individual who, while a director of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of any other foreign or domestic
corporation or of any partnership, joint venture, trust, other enterprise,
or employee benefit plan. A director shall be considered to be serving an
employee benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on or otherwise involve services by him to
the plan or to participants in or beneficiaries of the plan.
(c) "Expenses" includes attorney fees.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expense incurred with respect to a proceeding.
(e) "Official capacity," when used with respect to a director,
means the office of director in the Corporation, and, when used with
respect to an individual other than a director, means the office in the
Corporation held by the officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the Corporation. "Official
capacity" does not include service for any other foreign or domestic
corporation or for any partnership, joint venture, trust, other enterprise,
or employee benefit plan.
(f) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
-11-
Section 2. Permissive Indemnification:
- ---------------------------------------
(a) Except as provided in paragraph (d) of this Section 2, the
Corporation may indemnify against liability incurred in any proceeding an
individual made a party to the proceeding because he is or was a director
if: (i) he conducted himself in good faith; (ii) he reasonably believed:
(A) in the case of conduct in his official capacity with the Corporation,
that his conduct was in the Corporation's best interests; or (B) in all
other cases, that his conduct was at least not opposed to the Corporation's
best interests; and (iii) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose he reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirements of subparagraph (B) of subparagraph (ii) of paragraph (a) of
this Section 2. A director's conduct with respect to an employee benefit
plan for a purpose that he did not reasonably believe to be in the
interests of the participants in or beneficiaries of the plan shall be
deemed not to satisfy the requirements of subparagraph (i) of paragraph (a)
of this Section 2.
(c) The termination of any proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, is not of itself determinative that the individual did not meet
the standard of conduct set forth in paragraph (a) of this Section 2.
(d) The Corporation may not indemnify a director under this Section
2 either: (i) in connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to the Corporation;
or (ii) in connection with any proceeding charging improper personal
benefit to the director, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him.
(e) Indemnification permitted under this Section 2 in connection
with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 3. Mandatory Indemnification:
- --------------------------------------
Unless limited by the Articles of Incorporation, the Corporation shall be
required to indemnify a person who is or was a director of the Corporation and
who was wholly successful, on the merits or otherwise, in defense of any
proceeding to which he was a party against reasonable expenses incurred by him
in connection with the proceeding.
Section 4. Court-Ordered Indemnification:
- ------------------------------------------
Unless limited by the Articles of Incorporation, a director who is or was a
party to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving
-12-
any notice the court considers necessary, may order indemnification in the
following manner:
(a) If it determines the director is entitled to mandatory
indemnification under Section 3, the court shall order indemnification, in
which case the court shall also order the Corporation to pay the director's
reasonable expenses incurred to obtain court-ordered indemnification.
(b) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in paragraph (a) of
Section 2 or was adjudged liable in the circumstances described in
paragraph (d) of Section 2, the court may order such indemnification as the
court deems proper; except that the indemnification with respect to any
proceeding in which liability shall have been adjudged in the circumstances
described in paragraph (d) of Section 2 is limited to reasonable expenses
incurred.
Section 5. Determination:
- --------------------------
(a) The Corporation may not indemnify a director under Section 2
unless authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the circumstances
because he has met the standard of conduct set forth in paragraph (a) of
Section 2.
(b) The determination required to be made by paragraph (a) of this
Section 5 shall be made: (i) by the Board of Directors by a majority vote
of a quorum, which quorum shall consist of directors not parties to the
proceeding; or (ii) if a quorum cannot be obtained, by a majority vote of a
committee of the Board designated by the Board, which committee shall
consist of two or more directors not parties to the proceeding; except that
directors who are parties to the proceeding may participate in the
designation of directors for the committee.
(c) If the quorum cannot be obtained or the committee cannot be
established under paragraph (b) of this Section 5, or even if a quorum is
obtained or a committee designated if such quorum or committee so directs,
the determination required to be made by paragraph (a) of this Section 5
shall be made: (i) by independent legal counsel selected by a vote of the
Board of Directors or the committee in the manner specified in subparagraph
(i) or (ii) of paragraph (b) of this Section 5 or, if a quorum of the full
Board cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full Board; or
(ii) by the shareholders.
(d) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible; except that, if the
determination that indemnification is permissible is made by independent
legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by the body that selected said
counsel.
-13-
Section 6. Payment In Advance:
- -------------------------------
(a) The Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to the proceeding in advance of the
final disposition of the proceeding if: (i) the director furnishes the
Corporation a written affirmation of his good-faith belief that he has met
the standard of conduct described in subparagraph (i) of paragraph (a) of
Section 2; (ii) the director furnishes the Corporation a written
undertaking, executed personally or on his behalf, to repay the advance if
it is determined that he did not meet such standard of conduct; and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Section 6.
(b) The undertaking required by subparagraph (ii) of paragraph (a)
of this Section 6 shall be an unlimited general obligation of director, but
need not be secured and may be accepted without reference to financial
ability to make repayment.
Section 7. Indemnification of Officers, Employees and Agents:
- --------------------------------------------------------------
Unless limited by the Articles of Incorporation:
(a) An officer of the Corporation who is not a director is entitled
to mandatory indemnification pursuant to Section 3 of this Article X and is
entitled to apply for court-ordered indemnification pursuant to Section 4
of this Article X in each case to the same extent as a director;
(b) The Corporation may indemnify and advance expenses pursuant to
Section 6 of this Article X to an officer, employee, or agent of the
Corporation who is not a director to the same extent as a director; and
(c) The Corporation may indemnify and advance expenses to an
officer, employee, or agent of the Corporation who is not a director to a
greater extent if consistent with law and if provided for by its Articles
of Incorporation, Bylaws, resolution of its shareholders or directors, or
in a contract.
Section 8. Insurance:
- ----------------------
The Corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, fiduciary, or agent of
the Corporation and who, while a director, officer, employee, fiduciary or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, fiduciary, or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
other enterprise, or employee benefit plan against any liability asserted
against or 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 section.
-14-
Section 9. Notice to Shareholders:
- -----------------------------------
Any indemnification of or advance of expenses to a director in accordance
with this Article X, if arising out of a proceeding by or on behalf of the
Corporation, shall be reported in writing to the shareholders with or before the
notice of the next shareholders' meeting.
CERTIFICATE
-----------
I do hereby certify that I was Secretary of the Corporation on December 2,
1993, the date that Action by Unanimous Written Consent was taken, and I do
hereby certify that the above and foregoing Bylaws were duly adopted as the
Bylaws of said Corporation by such Action by Unanimous Consent.
/s/ Norbert Teufelberger
-------------------------------------
(SEAL)
-15-