EXHIBIT 3.63
[Restated electronically for SEC filing purposes only]
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
HOUSTON AND O'LEARY COMPANY
These Amended and Restated Articles of Incorporation of Houston and
O'Leary Company, which include amendments, correctly set forth the provisions of
the corporation's Articles of Incorporation, as amended, and supersede the
corporation's original Articles of Incorporation and all amendments thereto.
These Amended and Restated Articles of Incorporation were recommended by the
board of directors and approved by the shareholders of the corporation on the
9th February, 1998. The number of votes cast for such Amended and Restated
Articles of Incorporation by each voting group entitled to vote separately on
the amendment was sufficient for approval by that voting group.
FIRST: The name of the corporation is Houston and O'Leary Company.
SECOND: The corporation shall have and may exercise all of the rights,
powers and privileges now or hereafter conferred upon corporations organized
under the laws of Colorado. In addition, the corporation may do everything
necessary, suitable or proper for the accomplishment of any of its corporate
purposes. The corporation may conduct part or all of its business in any part of
Colorado, the United States or the world and may hold, purchase, mortgage, lease
and convey real and personal property in any of such places.
THIRD: (a) The aggregate number of shares which the corporation shall
have authority to issue is 10,000 shares of common stock each having a par value
of $1.00. The shares of this class of common stock shall have unlimited voting
rights and shall constitute the sole voting group of the corporation, except to
the extent any additional voting group or groups may hereafter be established in
accordance with the Colorado Business Corporation Act. The
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shares of this class shall also be entitled to receive the net assets of the
corporation upon dissolution.
(b) Each shareholder of record shall have one vote for each share of
stock standing in his name on the books of the corporation and entitled to vote,
except that in the election of directors, each shareholder shall have as many
votes for each share held by him as there are directors to be elected and for
whose election the shareholder has a right to vote. Cumulative voting shall not
be permitted in the election of directors or otherwise.
(c) Unless otherwise ordered by a court of competent jurisdiction, at
all meetings of shareholders one-third of the shares of a voting group entitled
to vote at such meeting, represented in person or by proxy, shall constitute a
quorum of that voting group.
FOURTH: The number of directors of the corporation shall be fixed by
the bylaws, or if the bylaws fail to fix such a number, then by resolution
adopted from time to time by the board of directors, provided that the number of
directors shall not be more than three nor less than one.
FIFTH: The street address of the registered office of the corporation
is 1675 Broadway, Denver, Colorado 80202. The name of the registered agent of
the corporation at such address is The Corporation Company.
SIXTH: The address of the principal office of the corporation is 620 E.
Hyman Avenue, Aspen, Colorado 81611.
SEVENTH: The following provisions are inserted for the management of
the business and for the conduct of the affairs of the corporation, and the same
are in furtherance of and not in limitation or exclusion of the powers conferred
by law.
(a) Conflicting Interest Transactions. As used in this paragraph,
"conflicting interest transaction" means any of the following: (i) a loan or
other assistance by the corporation to a
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director of the corporation or to an entity in which a director of the
corporation is a director or officer or has a financial interest; (ii) a
guaranty by the corporation of an obligation of a director of the corporation or
of an obligation of an entity in which a director of the corporation is a
director or officer or has a financial interest; or (iii) a contract or
transaction between the corporation and a director of the corporation or between
the corporation and an entity in which a director of the corporation is a
director or officer or has a financial interest. No conflicting interest
transaction shall be void or voidable, be enjoined, be set aside, or give rise
to an award of damages or other sanctions in a proceeding by a shareholder or by
or in the right of the corporation, solely because the conflicting interest
transaction involves a director of the corporation or an entity in which a
director of the corporation is a director or officer or has a financial
interest, or solely because the director is present at or participates in the
meeting of the corporation's board of directors or of the committee of the board
of directors which authorizes, approves or ratifies a conflicting interest
transaction, or solely because the director's vote is counted for such purpose
if (A) the material facts as to the director's relationship or interest and as
to the conflicting interest transaction are disclosed or are known to the board
of directors or the committee, and the board of directors or committee in good
faith authorizes, approves or ratifies the conflicting interest transaction by
the affirmative vote of a majority of the disinterested directors, even though
the disinterested directors are less than a quorum; or (B) the material facts as
to the director's relationship or interest and as to the conflicting interest
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the conflicting interest or (C) a conflicting interest 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 shareholders.
Common or interested directors may be counted in determining the presence of a
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quorum at a meeting of the board of directors or of a committee which
authorizes, approves or ratifies the conflicting interest transaction.
(b) Loans and Guaranties for the Benefit of Directors. Neither the
board of directors nor any committee thereof shall authorize a loan by the
corporation to a director of the corporation or to an entity in which a director
of the corporation is a director or officer or has a financial interest, or a
guaranty by the corporation of an obligation of a director of the corporation or
of an obligation of an entity in which a director of the corporation is a
director or officer or has a financial interest, until at least ten days after
written notice of the proposed authorization of the loan or guaranty has been
given to the shareholders who would be entitled to vote thereon if the issue of
the loan or guaranty were submitted to a vote of the shareholders. The
requirements of this paragraph (b) are in addition to, and not in substitution
for, the provisions of paragraph (a) of Article SEVENTH.
(c) Indemnification. The corporation shall indemnify, to the maximum
extent permitted by law, any person who is or was a director, officer, agent,
fiduciary or employee of the corporation against any claim, liability or expense
arising against or incurred by such person made party to a proceeding because he
is or was a director, officer, agent, fiduciary or employee of the corporation
or because he is or was serving another entity as a director, officer, partner,
trustee, employee, fiduciary or agent at the corporation's request. The
corporation shall further have the authority to the maximum extent permitted by
law to purchase and maintain insurance providing such indemnification.
(d) Limitation on Director's Liability. No director of this corporation
shall have any personal liability for monetary damages to the corporation or its
shareholders for breach of his fiduciary duty as a director, except that this
provision shall not eliminate or limit the personal
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liability of a director to the corporation or its shareholders for monetary
damages for: (i) any breach of the director's duty of loyalty to the corporation
or its shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) voting for or
assenting to a distribution in violation of Colorado Revised Statutes ss.
7-106-401 or the articles of incorporation if it is established that the
director did not perform his duties in compliance with Colorado Revised Statutes
ss. 7-108-401, provided that the personal liability of a director in this
circumstance shall be limited to the amount of the distribution which exceeds
what could have been distributed without violation of Colorado Revised Statutes
ss. 7-106-401 or the articles of incorporation; or (iv) any transaction from
which the director directly or indirectly derives an improper personal benefit.
Nothing contained herein will be construed to deprive any director of his right
to all defenses ordinarily available to a director nor will anything herein be
construed to deprive any director of any right he may have for contribution from
any other director or other person.
(e) Negation of Equitable Interests in Shares or Rights. Unless a
person is recognized as a shareholder through procedures established by the
corporation pursuant to Colorado Revised Statutes ss. 7-107-204 or any similar
law, the corporation shall be entitled to treat the registered holder of any
shares of the corporation as the owner thereof for all purposes permitted by the
Colorado Business Corporation Act, including without limitation all rights
deriving from such shares, and the corporation shall not be bound to recognize
any equitable or other claim to, or interest in, such shares or rights deriving
from such shares on the part of any other person including without limitation, a
purchaser, assignee or transferee of such shares, unless and until such other
person becomes the registered holder of such shares or is recognized as such,
whether or not the corporation shall have either actual or constructive notice
of the claimed interest of
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such other person. By way of example and not of limitation, until such other
person has become the registered holder of such shares or is recognized pursuant
to Colorado Revised Statutes ss. 7-107-204 or any similar applicable law, he
shall not be entitled: (i) to receive notice of the meetings of the
shareholders; (ii) to vote at such meetings; (iii) to examine a list of the
shareholders; (iv) to be paid dividends or other distributions payable to
shareholders; or (v) to own, enjoy and exercise any other rights deriving from
such shares against the corporation. Nothing contained herein will be construed
to deprive any beneficial shareholder, as defined in Colorado Revised Statutes
ss. 7-113-101(1), of any right he may have pursuant to Article 113 of the
Colorado Business Corporation Act or any subsequent law.
EIGHTH: These Amended and Restated Articles of Incorporation shall
become effective on the date that they are filed with the Colorado Secretary of
State.
HOUSTON AND O'LEARY COMPANY
By: /s/ Heidi O'Leary Houston
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Heidi O'Leary Houston
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