Exhibit 3.63
ARTICLES OF ORGANIZATION
OF BATFISH AUTO LLC
The undersigned, a natural person of at least 18 years of age,
acting as organizer, hereby forms a limited liability company by virtue of
the Colorado Limited Liability Company Act, Colo. Rev. Stat. 7-80-101, et.
seq., as amended from time to time (the "Act") and adopts the following
Articles of Organization for such limited liability company.
ARTICLE I
Name
The name of the limited liability company is Batfish Auto LLC (the
"Company").
ARTICLE II
Principal Place of Business
The principal place of business of the Company is 10030 East
Arapahoe Road, Englewood, Colorado 80112.
ARTICLE III
Duration
The Company shall dissolve and terminate thirty (30) years from
the date of filing these Articles of Organization with the Colorado
Secretary of State, unless the limited liability company is sooner
dissolved pursuant to the Act or the Operating Agreement of the Company as
defined in Article IX below.
ARTICLE IV
Registered Agent
The registered agent of the Company in Colorado is Michael J.
Sternick. The business address of the registered agent is 410 Seventeenth
Street, 22nd Floor, Denver Colorado 80202-4437.
ARTICLE V
Purpose
The Company is organized for any legal and lawful purpose pursuant
to the Colorado Limited Liability Company Act.
ARTICLE VI
Initial Manager
The number of initial managers shall be one. The name and address
of the initial manager is:
Name Address
John A. Elway, Jr. 10030 East Arapahoe Road
Englewood, Colorado 80112
The manager may be removed and replace by the Members, as provided in the
Operating Agreement of the Company.
ARTICLE VII
Members
There will be at least two (2) members of the Company upon
formation.
ARTICLE VIII
Right to Continue Business
Upon the death, retirement, resignation, expulsion, bankruptcy, or
dissolution of a member or the occurrence of any other event which may
terminate the continued membership of a member ("Withdrawal Event") in the
Company, the business of the Company may be continued so long as there are
at least two (2) remaining members and all remaining members consent to the
continuation of the business. The manag ers of the Company shall call a
special meeting of members within ninety (90) days after the Withdrawal
Event for purposes of determining whether the business should be continued.
In the event the remaining members fail to agree to continue the business
of the Company within ninety (90) days following the Withdrawal Event, the
Company shall be dissolved and liquidated.
ARTICLE IX
Operating Agreement
The Operating Agreement of the Company shall be executed by each
Member of the Company and shall set forth all provisions for the affairs of
the Company and the conduct of business to the extent that such provisions
are not inconsistent with law or these Articles.
ARTICLE X
Liabilities of Members and Managers
Members and managers of the Company are not liable under any
judgment, decree or order of a court, or in any other manner, for any debt,
obligation or liability of the Company.
ARTICLE XI
Indemnification
(a) As used in this Article:
(i) "expenses" includes reasonable attorneys' fees.
(ii) "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.
(iii) "official capacity," when used with respect to the
managers, means the officer of manager in the Company and, when used with
respect to any other person, means the employment or agency relationship
undertaken by the employee or agent on behalf of the Company. Official
capacity does not include service for any other foreign or domestic limited
liability company or for any corporation, partnership, joint venture,
trust, other enterprise, or employee benefit plan.
(iv) "party" includes an individual or entity who was,
is, or is threat ened to be made a named defendant or respondent in a
proceeding.
(v) "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether form or informal.
(b) (i) Except as provided in Paragraph (iv) of this Subsection
(b), the Company may indemnify against liability incurred in any proceeding
any manager made a party to the proceeding because of holding the position
of manager if:
(A) Such manager's conduct was in good faith;
(B) such manager reasonably believed: (1) in the case of conduct in such
manager's official capacity, that such conduct was in the Company's best
interests; or (2) in all other cases, that such conduct was at least not
opposed to the Company's best interests; and (C) in the case of any
criminal proceeding, such manager had no reasonable cause to believe such
conduct was unlawful.
(ii) The termination of any proceeding by judgment,
order, settle ment, or conviction, or upon a plea of nolo contendere or its
equivalent, is not of itself determinative that the manager did not meet
the standard of conduct set forth in Paragraph (i) of this Subsection (b).
(iii) the Company may not indemnify a manager under this
Subsec tion (b) either: (A) in connection with a proceeding by or in the
right of the Company in which the manager was adjudged liable to the
Company; or (B) in connection with any proceeding charging improper
personal benefit to the manager, whether or not involving action in such
manager's official capacity, in which such manager was adjudged liable on
the basis that personal benefit was improperly received by such manager.
(iv) Indemnification permitted under this Subsection (b)
in connec tion with a proceeding by or in the right of the Company is
limited to reasonable expenses incurred in connection with the proceeding.
(c) Unless limited by these Articles of Organization, the Company
shall be required to indemnify a manager of the Company who was wholly
successful, on the merits or otherwise, in defense of any proceeding to
which such manager was a party, against reasonable expenses incurred by
such manager in connection with the proceeding.
(d) Unless limited by these Articles or Organization, a manager
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 any
notice the court considers necessary, may order indemnification in the
following manner:
(i) If it determines the manager is entitled to mandatory
indemnifica tion under Subsection (c) of this Article, the court shall
order indemnification, in which case the court shall also order the Company
to pay the manager's reasonable expenses incurred to obtain court-ordered
indemnification.
(ii) If it determines that the manager is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the manager met the standard of conduct set
forth in Paragraph (i) of Subsection (b) of this Article or was adjudged
liable in the circumstances described in Paragraph (iii) of Subsection (b)
of this Article, 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 (iii) of Subsection (b) of this Article is limited
to reasonable expenses incurred.
(e) (i) The Company may not indemnify a manager under Subsection
(b) of this Article unless authorized in the specific case after a
determination has been made that indemnification of the manager is
permissible in the circumstances because the manager has met the standard
of conduct set forth in Paragraph (i) of said Subsection (b).
(ii) The determination required to be made by Paragraph
(i) of this Subsection (e) shall be made by the Members by a majority vote;
except that such vote shall not include Members who are parties to the
proceedings.
(iii) Authorization of indemnification and evaluation as
to reason ableness of expenses shall be made in the same manner as the
determination that indemnification is permissible.
(f) (i) The Company may pay for or reimburse the reasonable
expenses incurred by a manager who is a party to a proceeding in advance of
the final disposi tion of the proceeding if: (A) the manager furnishes the
Company a written affirma tion of such manager's good-faith belief that the
manager has met the standard of conduct described in Subparagraph (1) of
Paragraph (i) of Subsection (b) of this Article; (B) the manager furnishes
the Company a written undertaking, executed by or on behalf of such
manager, to repay the advance if it is determined that the manager did not
meet such standard of conduct; and (C) a determination is made that the
facts then known to those making the determination would not preclude
indemni fication under this Subsection (f).
(ii) The undertaking required by Subparagraph (B) of
Paragraph (i) of this Subsection (f) shall be an unlimited general
obligation of the manager but need not be secured and may be accepted
without reference to financial ability to make repayment.
(iii) Determinations and authorizations of payments under
this Subsection (f) shall be made in the manner specified in Subsection (e)
of this Article.
(g) This Article shall not limit the Company's power to pay or
reimburse expenses incurred by a manager in connection with such manager's
appearance as a witness in a proceeding at a time when the manager has not
been made a named defendant or respondent in the proceeding.
(h) The Company may indemnify and advance expenses to an employee
or agent of the Company who is not a manager to the same or to a greater
extent as the Company may indemnify and advance expense to a manager; and
(i) The Company may purchase and maintain insurance on behalf of a
person who is or was a manager, employee, fiduciary, or agent of the
Company or who, while a manager, employee, fiduciary, or agent of the
Company, is or was serving at the request of the Company as manager,
officer, partner, trustee, employee, fiduciary, or agent of any other
foreign or domestic limited liability company or any corpora tion,
partnership, joint venture, trust, other enterprise, or employee benefit
plan against any liability asserted against or incurred by such person in
any such capacity or arising out of such person's status as such, whether
or not the Company would have the power to indemnify such person against
such liability under the provisions of this Article. Any such insurance may
be procured from any insurance company designated by the Members of the
Company, whether such insurance company is formed under the laws of this
state or any other jurisdiction of the United States or elsewhere.
(j) Any indemnification of or advance of expenses to a manger in
accordance with this Article, if arising out of a proceeding by or on
behalf of the Company, shall be reported in writing to the Members with or
before the notice of the next Members' meeting.
(k) Any indemnification set forth in this Article shall in no
event cause the Members to incur any liability, or result in any liability
of the Members to any third party, beyond those liabilities specifically
enumerated in these Articles of organiza tion, the Act or the Operating
Agreement.