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EXHIBIT 3.4
AMENDED AND RESTATED BYLAWS
OF
CACTUS PETE'S, INC.
AS ADOPTED
AUGUST 30, 1993
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BYLAWS OF
CACTUS PETE'S, INC.
TABLE OF CONTENTS
Article I - Purposes .................................................... 1
Section 1.01 Purpose ............................................ 1
Article II - Offices .................................................... 1
Section 2.01 Offices ............................................ 1
Section 2.02 Registered Office .................................. 1
Article III - Shareholders .............................................. 2
Section 3.01 Annual Meeting ..................................... 2
Section 3.02 Special Meeting .................................... 2
Section 3.03 Place of Meeting ................................... 2
Section 3.04 Action Without a Meeting ........................... 2
(a) Action by Written Consent ............................ 2
(b) Withdrawal of Consent ................................ 2
(c) Effective Date of Action ............................. 3
Section 3.05 Notice of Meeting .................................. 3
(a) Notice Required ...................................... 3
(b) Contents of Notice ................................... 3
(c) Waiver of Notice ..................................... 4
Section 3.06 Record Date ....................................... 4
(a) Fixing of Record Date ................................ 4
(b) Default Record Date .................................. 4
Section 3.07 Vote Required to take Action ....................... 4
Article IV - Board of Directors ......................................... 4
Section 4.01 General Powers ..................................... 4
Section 4.02 Number ............................................. 4
Section 4.03 Election ........................................... 5
Section 4.04 Term ............................................... 5
Section 4.05 Qualifications ..................................... 5
Section 4.06 Resignation ........................................ 5
Section 4.07 Regular Meetings ................................... 5
Section 4.08 Special Meetings ................................... 5
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Section 4.09 Action Without a Meeting .......................... 6
Section 4.10 Notice of Special Meetings ........................ 6
Section 4.11 Waiver of Notice .................................. 6
(a) Written Waiver ...................................... 6
(b) Waiver by Attendance ................................ 7
Section 4.12 Quorum ............................................ 7
Section 4.13 Manner of Acting .................................. 7
Section 4.14 Meetings by Telecommunication ..................... 7
Article V - Officers ................................................... 7
Section 5.01 Number ............................................ 7
Section 5.02 Appointment and Term of Office .................... 8
Section 5.03 Removal ........................................... 7
Section 5.04 Resignation ....................................... 8
Section 5.05 Vacancies ......................................... 8
Section 5.06 Compensation ...................................... 8
Section 5.06 The President ..................................... 8
Section 5.07 The Vice President ................................ 9
Section 5.08 The Secretary ..................................... 9
Section 5.09 The Treasurer ..................................... 10
Section 5.10 Assistant Secretaries and Assistant Treasurers .... 10
Article VI - Certificates for Shares and Their Transfer ................ 10
Section 6.01 Certificates for Shares ........................... 10
Article VII - Dividends ................................................ 11
Section 7.01 Dividends ......................................... 11
Article VIII - Indemnification ......................................... 11
Section 8.01 Indemnification ................................... 11
Section 8.02 Authorization of Indemnification .................. 11
Section 8.03 Advance of Expenses ............................... 11
Section 8.04 Insurance ......................................... 11
Section 8.05 Savings Clause .................................... 12
Article IX - Miscellaneous ............................................. 12
Section 9.01 Amendments ........................................ 12
Secretary's Certificate ................................................ 13
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BYLAWS OF
CACTUS PETE'S, INC.
ARTICLE I - PURPOSES
SECTION 1.01 PURPOSE. This corporation is organized for any and all
lawful purposes for which corporations may be organized under Nevada law, as now
and in the future provided thereby and as set forth in the Corporation's
Articles of Incorporation, including, without limitation, to operate a gaming
operation consistent with all requirements of Nevada law regulating gaming as
from time to time in force and applicable to the Corporation.
ARTICLE II - OFFICES
SECTION 2.01 OFFICES. The principal office of the Corporation may be
located at any place, either in or outside the State of Nevada, as designated in
the Corporation's most current Annual Report filed with the State of Nevada. The
Corporation may have such other offices, either in or outside the State of
Nevada, as the Board of Directors may designate or as the business of the
Corporation may require from time to time. The Corporation shall maintain at its
principal office a copy of all records required to be so kept by applicable law.
SECTION 2.02 REGISTERED OFFICE. The registered office of the
Corporation, required by Nevada law, shall be located in the State of Nevada and
may be, but need not be, identical with the Corporation's principal office (if
located in the State of Nevada). The address of the registered office may be
changed from time to time.
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ARTICLE III - SHAREHOLDERS
SECTION 3.01 ANNUAL MEETING. The Corporation shall hold an annual
meeting of shareholders at such time, date and place as the Board of Directors
shall determine, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting.
SECTION 3.02 SPECIAL MEETING. The Corporation shall hold a special
meeting of the shareholders.
(i) on call of its Board of Directors, the chairman of the
Board of Directors or the president; or
(ii) if the holders of shares representing at least ten
percent (10%) of all the votes entitled to be cast on any issue that is
proposed to be considered at a special meeting sign, date and deliver to
the Corporation's secretary one or more written demands for the meeting,
stating the purpose or purposes for which it is to be held.
SECTION 3.03 PLACE OF MEETINGS. The Board of Directors may designate any
place, either in or outside the State of Nevada, as the place at which any
annual or special meeting is to be held. If no designation is made, the meeting
shall be held at the Corporation's principal office.
SECTION 3.04 ACTION WITHOUT A MEETING.
(a) ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a meeting if a
consent is in writing, setting forth the action so taken, is signed by all the
shareholders entitled to vote on such action. Such consent has the same force
and effect as a unanimous vote of the shareholder.
(b) WITHDRAWAL OF CONSENT. Any shareholder giving a written
consent, or the shareholder's proxyholder, or a transferee of the shares or a
personal representative of the shareholder or their respective proxyholder, may
revoke the consent by a signed writing describing
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the action and stating that the shareholder's prior consent is revoked, if the
writing is received by the Corporation prior to the effectiveness of the action.
(c) EFFECTIVE DATE OF ACTION. An action taken pursuant to this
Section 3.04 is not effective unless all written consents on which the
Corporation relies for the taking of an action pursuant to subsection (a) are
received by the Corporation within a sixty day period and not revoked pursuant
to subsection (b). Action taken pursuant to this Section 3.04 is effective as of
the date the last written consent necessary to effect the action is received by
the Corporation, unless all of the written consents necessary to effect the
action specify a later date as the effective date of the action, in which case
the later date shall be the effective date of the action.
SECTION 3.05 NOTICE OF MEETING.
(a) NOTICE REQUIRED. The Corporation shall give notice to
shareholders of the date, time and place of each annual and special
shareholders' meeting no fewer than ten (10) nor more than sixty (60) days
before the meeting date. Notice shall be deemed effective at the earlier of (i)
when deposited in the United States mail, addressed to the shareholder at his or
her address as it appears on the stock transfer books of the Corporation, with
postage thereon prepaid; (ii) on the date shown on the return receipt if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee; (iii) when received; or (iv) 5 days
after deposit in the United States mail, if mailed postpaid and correctly
addressed to an address other than that shown in the Corporation's current
record of shareholders.
(b) CONTENTS OF NOTICE.
(i) The notice of every shareholders' meeting must state
the place, day and time of the meeting.
(ii) Notice of any shareholders' meeting should include a
description of the purpose or purposes for which the meeting is called.
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(c) WAIVER OF NOTICE. A shareholder may waive any notice
required by these bylaws, before or after the date and time stated in the notice
as the date or time when any action will occur or has occurred. The waiver must
be in writing, be signed by the shareholder entitled to the notice, and be
delivered to the Corporation for inclusion in the minutes or filing with the
corporate records.
SECTION 3.06 RECORD DATE FOR MEETINGS AND OTHER ACTIONS.
(a) FIXING OF RECORD DATE. The Board of Directors by resolution
may fix a record date in order to determine the shareholders entitled to
receive notice of a shareholders' meeting, and to determine the
shareholders who are entitled to take action without a meeting, to
demand a special meeting, to vote, or to take any other action. Such
record date may not be more than sixty (60) days before the meeting or
action requiring the determination of shareholders.
(b) DEFAULT RECORD DATE. If the Board of Directors does not fix
a record date, the record date for determining shareholders entitled to
notice of and to vote at an annual or special shareholders' meeting is
the close of business on the date before the first notice is delivered
to shareholders.
SECTION 3.07 VOTE REQUIRED TO TAKE ACTION FOR OTHER THAN ELECTION OF
DIRECTORS. If a quorum exists, action on a matter is approved if the votes cast
favoring the action exceed the votes cast opposing the action, except where a
greater number of affirmative votes is otherwise required by law.
ARTICLE IV - BOARD OF DIRECTORS
SECTION 4.01 GENERAL POWERS. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors.
SECTION 4.02 NUMBER. The Board of Directors shall consist of no less
than three and no more than seven Directors; provided that as long as the number
of shareholders of the Corporation is less than 3, the number of Directors may
be the same as the number of shareholders, with the exact
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number of Directors within such parameters to be set by resolution of the Board
of Directors from time to time; provided that no decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director.
SECTION 4.03 ELECTION. The Directors shall be elected at each annual
meeting of the shareholders. If the Directors are not elected at an annual
meeting, or if an annual meeting is not held, then the Directors may be elected
at any special meeting of the shareholders held for that purpose.
SECTION 4.04 TERM. The terms of Directors of the Corporation expire at
the next annual shareholders' meeting following their election. Despite the
expiration of a Director's term, the Director shall continue to serve until the
election and qualification of a successor or until there is a decrease in the
number of Directors, or until such Director's earlier death, resignation or
removal from office.
SECTION 4.05 QUALIFICATIONS. Directors need not be residents of the
State of Nevada or shareholders of the Corporation.
SECTION 4.06 RESIGNATION. Any Director of the Corporation may resign at
any time by giving written notice to the Corporation. A resignation is effective
when the notice is received by the Corporation unless the notice specifies a
later effective date.
SECTION 4.07 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. By resolution, the
Board of Directors may determine the time and place, either within or without
the State of Nevada, for the holding of additional regular meetings without
other notice than such resolution.
SECTION 4.08 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 any two (2) Directors. The person or persons authorized to call
special meetings of the Board of Directors may fix any place,
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either within or without the State of Nevada, as the place for holding any
special meeting of the Board of Directors called by them.
SECTION 4.09 ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at a meeting of the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed by
all of the Directors. Such consent has the same force and effect as a unanimous
vote of the Directors. Action taken under this provision is effective at the
time the last Director signs a writing describing the action taken, unless,
prior to that time, any Director has revoked a consent by a writing signed by
the Director and received by the secretary or any other person authorized by the
bylaws or the Board of Directors to receive the revocation, or unless the
consent specifies a different effective time.
SECTION 4.10 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting
shall be given at least one (1) day prior to the date of the meeting. Notice
must be in writing unless oral notice is reasonable under the circumstance.
Notice may be communicated in person. by any form of electronic communication,
or by mail or private carrier. The notice need not describe the purpose of the
special meeting, unless otherwise required by law or these bylaws. Notice shall
be effective at the earliest of the following:
(i) when received;
(ii) five days after it is mailed;
(iii) on the date shown on the return receipt if sent by
registered or certified mail, return receipt
requested, and the receipt is signed by or on
behalf of the addressee.
SECTION 4.11 WAIVER OF NOTICE.
(a) WRITTEN WAIVER. Any Director may waive notice of any
meeting before or after the date and time of the meeting stated in the
notice. Except as provided in subsection (b), below, the waiver must be
in writing and signed by the Director entitled to notice. The waiver
shall be
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delivered to the Corporation for filing with the corporate records, but
delivery and filing are not conditions to its effectiveness.
(b) WAIVER BY ATTENDANCE. The attendance of a Director at or
participation in a meeting waives any required notice to the Director of
the meeting unless the Director at the beginning of the meeting, or
promptly upon the Director's arrival, objects to the holding of the
meeting or the transacting of business at the meeting because of lack of
notice or defective notice, and does not thereafter vote for or assent
to action taken at the meeting.
SECTION 4.12 QUORUM. A majority of the number of Directors fixed by
Section 4.02 of these bylaws constitutes a quorum for the transaction of
business at any meeting of the Board of Directors.
SECTION 4.13 MANNER OF ACTING. The act of a majority of the Directors
present at a meeting at which a quorum is present is the act of the Board of
Directors. Voting by proxy is not permitted.
SECTION 4.14 MEETINGS BY TELECOMMUNICATION. The Board of Directors may
permit any or all Directors to participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of communication by which
all Directors participating may hear each other during the meeting. A Director
participating in a meeting by this means is considered present in person at the
meeting.
ARTICLE V - OFFICERS
SECTION 5.01 NUMBER. The Corporation shall have a president, a
secretary, and a treasurer, and such other officers as may be determined by the
Board of Directors, each of whom shall be appointed by the Board of Directors.
One or more vice presidents, (the number to be determined by the Board of
Directors) and such other officers and assistant officers and agents as may be
deemed necessary may also be appointed by the Board of Directors. The Board of
Directors may delegate to any officer of the Corporation or any committee of the
Board of Directors the power to appoint,
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remove and prescribe the duties of such other officers, assistant officers,
agents and employees. Any two or more offices may be held by the same person.
SECTION 5.02 APPOINTMENT AND TERM OF OFFICE. The officers of the
Corporation shall be appointed by the Board of Directors or by any officer to
whom or committee of the Board of Directors to which the power of appointment
has been delegated. Each officer shall hold office until such officer's
successor has been appointed or until such officer's death or until such officer
shall resign or shall have been removed in the manner provided below. The
appointment of an officer shall not itself create any contract rights with the
Corporation
SECTION 5.03 REMOVAL. Any officer, assistant, agent or employee may be
removed, with or without cause, at any time by the Board of Directors, or by any
officer to whom or committee of the Board of Directors to which such power of
removal has been delegated, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
SECTION 5.04 RESIGNATION. An officer may resign at any time by giving
written notice of resignation to the Corporation. A resignation of an officer is
effective when it is received by the Corporation, unless the notice specifies a
later effective date. An officer's resignation does not affect the Corporation's
contract rights, if any, with the officer.
SECTION 5.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors or by any officer to whom or committee of the Board of Directors to
which such power has been delegated.
SECTION 5.06 COMPENSATION. The compensation of the officers shall be
fixed from time to time by the Board of Directors and no officer shall be
prevented from receiving such compensation by reason of the fact that he or she
is also a Director of the Corporation.
SECTION 5.06 THE PRESIDENT. The president, unless otherwise specified by
the Board of Directors, shall be the chief executive officer of the Corporation
and, under the direction of the Board of Directors, shall in general supervise
and control all the business and affairs of the Corporation. The president
shall, when present, preside at all meetings of the shareholders and, in
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the absence of the chair of the board, at meetings of the Board of Directors.
The president may hire, prescribe the duties of, and fire employees, and may
delegate such authority in whole or in part to any other officer or employee.
The president may sign, with the secretary or any other proper officer of the
Corporation thereunto authorized by the Board of Directors, certificates for
shares of the Corporation, and any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these bylaws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform 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.
SECTION 5.07 VICE PRESIDENT. One or more Vice Presidents may be elected
by the Board of Directors to perform such tasks and to have such authority less
than the President as may be provided by the Board of Directors. In the absence
of the president, or in the event of the president's death, inability or refusal
to act, the senior ranking vice president in title (i.e. "senior" or
"executive"; or in the event of more than one vice president with the same
title, the senior ranking vice president in terms of date of first election to
the current level of office) shall perform the duties of the president, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the president. Any vice president may sign, with the secretary or an
assistant secretary, certificates for shares of the Corporation; and shall
perform such other duties as from time to time may be assigned to him or her by
the president or by the Board of Directors.
SECTION 5.08 THE SECRETARY. The secretary shall (a) keep the minutes of
the shareholders' 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 bylaws or as required by law; (c) be custodian of
the corporate records and of the seal of the Corporation and affix such seal to
documents when authorized; (d) keep a register of the address of each
shareholder which shall be furnished to the secretary by such shareholder; (e)
sign with the president, or a vice president, certificates for shares of the
Corporation, the issuance of which shall have been authorized by resolution of
the Board of Directors; (f) have general charge of the stock transfer books of
the Corporation; (g) maintain the records required under Section 16-10a-1601 of
the Nevada Revised Business Corporation Act, and (h) in general perform all
duties incident to the office of secretary and
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such other duties as from time to time may be assigned to him or her by the
president or by the Board of Directors. In the absence of a secretary and any
assistant secretaries, the president shall perform these duties.
SECTION 5.09 THE TREASURER. If required by the Board of Directors, the
treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors shall
determine. He or she shall: (a) have charge and custody of and be responsible
for all funds and securities of the Corporation; (b) receive and give receipts
for moneys due and payable to the Corporation from any source whatsoever, and
deposit all such moneys in the name of the Corporation in such banks, trust
companies or other depositaries as shall be selected in accordance with the
provision of Section 8.04 of these bylaws;and (c) in general perform all of the
duties incident to the office of treasurer and such other duties as from time to
time may be assigned to him or her by the president or by the Board of
Directors. In the absence of a treasurer, the secretary shall perform such
duties.
SECTION 5.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries, when authorized by the Board of Directors, may sign with
the president or a vice president certificates for shares of the Corporation,
the issuance of which shall have been authorized by a resolution of the Board of
Directors. The assistant treasurers shall respectively, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or the treasurer, respectively, or by
the president or the Board of Directors.
ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.01 CERTIFICATES FOR SHARES. Every owner of shares of stock of
the Corporation is entitled to have a certificate or certificates, in a form
approved by the Board of Directors, certifying the number and class and series
of shares of the stock, of the Corporation owned by such shareholder. Such
certificates shall be consecutively numbered in the order in which they are
issued,
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and shall be signed by the President and the Secretary, together with such
authenticating agent as may be appointed from time to time by the Board of
Directors.
ARTICLE VII - DIVIDENDS
SECTION 7.01 DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Corporation's
Articles of Incorporation.
ARTICLE VIII - INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION. The Corporation shall indemnify each
person who is or was a Director, officer, employee or agent of the Corporation
or an individual who, while serving the indicated relationship to the
Corporation, is or was serving at the Corporation's request as a Director,
officer, partner, trustee, employee, fiduciary, or agent of another Corporation
or other person or of an employee benefit plan, to the fullest extent permitted
by the Nevada law.
SECTION 8.02 AUTHORIZATION OF INDEMNIFICATION. The Corporation shall be
deemed to have authorized such indemnification whenever a determination has been
made under Nevada law that indemnification of an individual is permissible in
the circumstances because the person has met the applicable standard of conduct.
SECTION 8.03 ADVANCE OF EXPENSES. The Corporation may accept an
undertaking of an officer or Director to repay advanced expenses if such are
ultimately found to have been unlawfully or improperly advanced without
reference to financial ability to make repayment.
SECTION 8.04 INSURANCE. The Corporation may purchase and maintain
liability insurance on behalf of a person who is or was a Director, officer,
employee, fiduciary, or agent of the Corporation, or who, while serving as 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,
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trustee, employee, fiduciary, or agent of another foreign or domestic
Corporation or other person, or of an employee benefit plan, against liability
asserted against or incurred by him or her in that capacity or arising from his
or her status as a Director, officer, employee, fiduciary, or agent, whether or
not the Corporation would have power to indemnify him or her against the same
liability.
SECTION 8.05 SAVINGS CLAUSE. If this Article or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each officer and Director as to
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether internal or external,
including without limitation a grand jury proceeding and an action or suit
brought by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article that shall not have been invalidated, or
by any other applicable law.
ARTICLE IX - MISCELLANEOUS
SECTION 9.01 AMENDMENTS. These bylaws, or any of them, may be altered,
amended or repealed, and new bylaws may be made, (i) by the Board of Directors,
by vote of a majority of the Directors then in office, acting at any meeting of
the Board of Directors, or (ii) by the shareholders, by vote of a majority of a
quorum of the shareholders, at any annual meeting of shareholders, without
previous notice, or at any special meeting of shareholders, provided that notice
of such proposed amendment, modification, repeal or adoption is given in the
notice of special meeting. Except as otherwise provided in the Corporation's
Articles of Incorporation, any bylaws made or altered by the shareholders may be
altered or repealed by either the Board of Directors or the shareholders.
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CERTIFICATE
THE UNDERSIGNED Secretary of CACTUS PETE'S, INC., does hereby certify
the foregoing to be the bylaws of such Corporation, as adopted by the Board of
Directors on August 30, 1993.
By /s/ THOMAS STEINBAUER
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Thomas Steinbauer