HomeMy WebLinkAboutresolution.council.039-94
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RESOLUTION NO.,~
Series of 1994
A RESOLUTION APPROVING THE ORGANIZATION OF THE ASPEN STREET RAILWAY
COMPANY.
WHEREAS, the City of Aspen, Colorado ("the City") is a duly organized and validly
existing political subdivision under the Constitution and laws of the State of Colorado; and
WHEREAS, it has been proposed that there be created, pursuant to the Colorado
Nonprofit Corporation Act, the Aspen Street Railway Company ("the Corporation") for the
purposes of constructing, installing and equipping certain public transportation facilities in or for
the benefit of the City; and,
WHEREAS, proposed forms of Articles ofIncorporation and Bylaws of the Corporation
have been presented to the City Council at this meeting; and,
WHEREAS, the Council desires at this time to authorize the organization of the
Corporation in accordance with the proposed Articles of Incorporation and Bylaws of the
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Corporation in substantially the form presented at this meeting, a true and correct copy of which
is attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
ASPEN, COLORADO:
1. Ap1?roval of Prior Action. All actions heretofore taken (not inconsistent with the
provisions of this Resolution) by the City Council or by the officers or staff of the City of Aspen
toward the creation and establishment of the Corporation and the accomplishment of the
transactions herein authorized are hereby ratified, approved and confirmed.
2. Approval of COl:poration. The activities and purposes of the Corporation, as specified
in the Articles of Incorporation and Bylaws thereof, are hereby approved by the City of Aspen.
3. City Action. The Mayor, the City Manager, and the City Clerk are hereby
authorized to take all action necessary or reasonably required to carry out, give effect to and to
consummate the transactions contemplated hereby.
4. Severability. If a provision of this Resolution should be held invalid, the invalidity
of such provision shall not affect any of the other provisions of this Resolution.
5. Other Actions by the COl:poration. The appropriate officers of the Corporation and
the City, and each of them, are hereby authorized to execute and deliver for and on behalf of
the City and the Corporation, respectively, any or all additional certificates, documents, and
other papers to perform all other acts they may deem necessary or appropriate in order to
implement and carry out the matters authorized in this resolution and any resolution of the
Corporation.
6. Immediate effect. This Resolution shall take effect immediately upon its passage.
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INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the_
;g day of Jlay
, 1994.
JOh~n~~, !~
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing
is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held on the day hereinabove stated.
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ARTICLES OF INCORPORATION
OF
ASPEN STREET RATI..W A Y COMPANY
The undersigned adult natural person, acting as lincorporator, hereby
establishes a nonprofit corporation pursuant to the Colorado Nonplrofit Corporation Act
and adopts the following articles of incorporation:
FIRST:
~. The name of the corporation is Aspen Street Railway
Company
SECOND: Duration. The corporation shall have perpetual existence,
THIRD: (a) Purnoses. The corporation is organized and shali be operated
exclusively on behalf of and for the benefit and in furtherance of the purposes of the City of
Aspen, Colorado, and the inhabitants thereof. All monies realized by the corporation shall be
used exclusively for the operation, maintenance and development of property of the corporation,
including payment of obligations of the corporation in connection therewith, which property shall
be used to provide safe and affordable public transportation. Any such property shall be located
within the City of Aspen, Colorado or have a substantial connection therewith.
(b) Powers. In furtherance of the foregoing purposes and
objectives (but not otheIWise) and subject to the restrictions set forth in section (c) of this article,
the corporation shall have and may exercise all of the powers now or hereafter conferred upon
nonprofit corporations organized under the laws of Colorado and may do everything necessary
or convenient for the accomplishment of any of the corporate purposes, either alone or in
connection with other organizations, entities or individuals, and either as principal or agent,
subject to such limitations as are or may be prescribed by law.
(c) Restrictions On Powers.
(1) No part of the net earnings of the corporation shall inure to
the benefit of or be distributable to any director or officer of the colrpOration, or any other
private person (except that reasonable compensation may be paid for services rendered to or for
the benefit of the corporation affecting one or more of its purposes), arid no director or officer
of the corporation, or any other individual, shall be entitled to share in any distribution of any
of the corporate assets on dissolution of the corporation or otheIWise.
(2) No substantial part of the activities of the corporation shall
consist of carrying on propaganda or otheIWise attempting to influence legislation. The
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corporation shall not participate or intervene in (including the publishing or distribution of
statements) any political campaign on behalf of or in opposition to any candidate for public
office.
(3) All property of the corporation shall be owned for the
benefit of the City of Aspen, Colorado, Upon dissolution of the ~rporation, all of the
corporation's assets remaining after payment of or provision for all of its liabilities shall be paid
over or transferred to the City of Aspen, Colorado.
(4) The corporation at all times shall be one not organized for
profit.
~ These Arti~les o(Incomoration mav not be amen~ without
lhe affirmative vote o( four of tJ1e members of.Jb~ Board.Jlf Directors.
R~istered Office and Al!:ent. The address of the initial registered
Aspen, Colorado . The name of
FOURTH:
office of the corporation is
its initial registered agent at such address is
FIFTH:
Members. The corporation shall have no members.
SIXTH: (a) Board of Directors. The management of the affairs of the
corporation shall be vested in a Board of Directors, except as otherwise provided in the
Colorado Nonprofit Corporation Act, these articles of incorporation or the bylaws of the
corporation. The ftlllBber sf directs", their e1assifie&liefts, if MY, their tefffiS sf sfRee Ilftd HIe
1Bl\ft/ler sf theif' eleeHo/l or appeill tlBellt shall be determifte6 _wing te the b yle.ws 0 f !he
earpeffl~e/l fr61B alBa te BlBe ift ferec.11Je Board (If Directors sh~ll have five members. At least
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Council of the Citv of Asuen and.JlUeast one other mem~ BoaIll..2f Directors s1Jil.J.a..il
IV timest be a full time emDlovee of the City of Asoen_ The City Counc~l or tlm. Citv Mana~er
R( lhe Citv of Asuen s~e riltht to aDl>oin\ t~e two a~ members of J~
~irectoTS. ~cation. if any a oUlir~tors. their terms qf..2!fice and tfte manner
~Iection or aooointment sh~lI otherwise be determined 8l'rnl1lin& to 't\12. bv laws of thsl
corooration from time to time ill force.
(b) Liabilitv of Directors. No director shall be personally
liable to the corporation for monetary damages for any breach of fiduciary duty as a director,
except that the foregoing shall not eliminate or limit such director's liability to the corporation
for monetary damages for the following: (I) any breach of su.ch director's duty of loyalty to :the
corporation, (2) any of such director's acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) acts specified in C.R.S, Section 7-24-
Ill, as it now exists or hereafter may be amended (regarding a director's assent to or
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participation in the making of any loan by the corporntion to any director or officer of the
corporation), or (4) any transaction from which such director derived an improper personal
benefit. If the Colorado Nonprofit Corporntion Act hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a director of the
cotporntion, in addition to the limitation on personal liability provided herein, shall be further
eliminated or limited to the fullest extent permitted by the Colorado Nonprofit Corporation Act.
Any repeal or modification of this Article SIXTH (b) shall be prospective only and shall not
adversely affect any right or protection of a director of the corporation existing at the time of
such repeal or modification.
(c) Initial Board. Three directors shall constitute the initial
Board of Directors. Their names and addresses are as follows:
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Address
SEVENTH: Bylaws. The initial bylaws of the corporation shall be as adopted
by the Board of Directors. The Board of Directors shall have power to alter, amend or repeal
the bylaws from time to time in force and adopt new bylaws, ~option or amendment of b~laws
2Ube cqrooration ~twJ. reouire the affirmative vote of four mem~ers of the Bnard..szLDirectors.
The bylaws of the cotporntion may contain any provisions for the regulation or management of
the affairs of the corporation that are not inconsistent with law or these articles of incorporation,
as these articles may from time to time be amended, However, no bylaw at any time in effect,
and no amendment to these articles, shall have the effect of giving any director or officer of the
corporntion any proprietary interest in the corporation's property or a.~sets, whether duringi the
term of the corporntion's existence or as an incident to its dissolution.
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EIGHTH:
Incornorator. The name and address of the incorporator is:
Thomas J, Mancuso, Esq.
410 17th Street, Suite 2200
Denver, Colorado 80202
Dated:
Thomas J.' Mancuso - Incorporator
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ACKNOWLBDGMENT
ST A TB OF COLORADO )
) s.
CITY AND COUNTY OF DENVER )
Acknowledged before me this _ day of
Mancuso as incorporator.
Witness my hand and official seal.
My commission expires
P..12I6
1994, by Thomas],
(SEAL)
Notary Public
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BYLAWS
OF
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TABLE OF CONTENTS
Page
ARTICLE 1.
OFFICES ........."............ I
Section 1.1 Business Offices .. . . . . . , . . . . . . . , . . . . . . . . . .. 1
Section 1.2 Reristered Office ....................................... 1
ARTICLE n.
MEMBERS .......................................,.......2
Section 2.1 No Members ........,............. , . . . . .. 2
ARTICLE m.
BOARD OF DIRECTORS .....,................,............,. 3
Section 3.1 General Powers ...,..........,............ 3
Section 3.2 Number. Election. Tenure and Oualificati.wl.s . . . . . . . .. 3
Section 3.3 Vacancies....,........".,...,.......... 3
Section 3.4 Rel!:ular Meetings ............,.,........... 4
Section 3.5 Soecial Meetings . . . . . . . . . . , . . . . . , . . . . . . , . .. 4
Section 3.6 Notice......,................,.......,. 4
Section 3.7 Presumntion of Assent ...,...............,.., 4
Section 3.8 Quorum and Voting .. .. .. .. .. I . . . . .. .. I I .. I .. . .. . .. . . .. 4
Section 3.9 Compensation.................,........,.. 5
Section 3.10 Executive and Other Committ~ . , . , . . . . . . . . . . . .. 5
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Section 3,11 Mretinl!s by Telephone .. . , . . . . . . . .. . , . . . .. . . . . ." 5
Section 3.12 Action Without a Mretini ..."...."."......"..".. 5
ARTICLE IV.
OFFICERS AND AGENTS . . , . , . . , . . . . . , , , . , . . , , . " . . , . , , . , , , , ." 6
Section 4.1 Number and Oualifications , . " , . . . .. " .. .. . . " , . . . , "" 6
Section 4.2 Election and Term of Office. , , , . . . " . , . . . . . . , . "" 6
Section 4,3 Compensation..,.........,,,...........,,,.,,,.,,,, 6
Section 4.4 Removal.,...."..,..."...",......."......". 6
Section 4.5 Vacancies".....,.""..."........"."",.."" 6
Section 4.6 Authoritv and Duties of Officers ...""....""."."". 6
Section 4,7 Sure(y Bonds " . , , . , . . , . . " . . . . . . . , . . . . , . , "" 8
_ ARTICLE V.
IND~CATlON . . .. . , . . . . . . . , . . . . , . . . . . . " . .. . . . . .. . . . . . . , .. 9
Section 5.1 Definitions...."....,,,,,,...,,.....,,,,..,,.. 9
Section 5.2 Rig:ht to Indemnification . . . , , . . , . , " . . . . . . . . . " , , . . , . 10
Section 5.3 Prior Authorization Required " . , . , . . . . . . . , . , , . . . . . . ." II
Section 5.4 Success on Merits or Otherwise ." . , . . , , . , . . . , . , . . . , , . II
Section 5.5 Advancement of Expenses .""."."..."".",,,...'''.,. 11
Section 5.6 Pa,ylJlent Procedures ...".",.".."......'".""...... II
Section 5.7 Insurance.".""..""....."".."".".....""..""."". 12
Section 5.8 Rie:ht to Imoose Conditions to Indemnification" . , . .. . . , . .. , .. 12
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Section 5.9 Other Ril!hts and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.10 Ap:plicability: Effect .."....,............,........ 13
Section 5.11 Indemnification of AlZents . . . . . . . , , . . . , . . . . . . . . . . . , . 13
Section 5.12 Savinl!s Clause: Limitation ...........,............. 13
ARTICLE VI.
MISCELLANEOUS .....,......................,..........., IS
Section 6.1 Account Books. Minutes. Etc . . . . . . . . . . . . . . . . . ., IS
Section 6.2 fiscal Year .................." . . . . . . . . . . 15
Section 6.3 Conveyances and Encumbrances ................, 15
Section 6.4 Desil!nated Contributions. . . . . . . . . . . . . . . . . . . . .. 15
Section 6.5 Conflicts of Interest . . . . . . , . . . . . . . . . . . . . . . . . . IS
Section 6.6 Loans to Directors and Officers Prohibited ,.....,... IS
Section 6.7 References to Internal Revenue Code .......,...... 16
Section 6.8 Amendments............................. 16
Section 6.9 Severability....,......................... 16
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BYLAWS
OF
ASPEN STREET RAILWAY COMPANY
ARTICLE'I.
OFFICES
Section 1: 1 Business Offices. The principal office of the corporation shall be
located in Aspen, Colorado. The corporation may have such other offices, either within or
outside Colorado, as the board of directors may designate or as the affairs of the corporation
may require from time to time.
Section 1.2 Rel!istered Office. The registered office of the oorporation required
by the Colorado Nonprofit Corporation Act to be maintained in Colorado may be, but need not
be, the same as the principal office if in Colorado, and the address of the registCJl'ed office may
be changed from time to time by the board of directors or by the officers of the corporation.
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ARTICLE II.
MEMBERS
Section 2.1 No Members. The corporation shall have no rnernbcrs.
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ARTICLE m.
BOARD OF nmECTORS
Section 3.1 General Powers. The business and affairs of the corporation shall
be managed by its board of directors, except as otherwise provided in the Colorado Nonprofit
Corporation Act, the articles of incorporation or these bylaws.
Section 3.2 Number. Election. Tenure and Qualifications. The number of
directors of the corporation shall be (rem three te se"'eII, Il3 aetermille6 BY the beitf6 ef E1ifeel6l's
frem lime 16 time. AllY aelioll af lfie !lew af E1ireel6l'S te illerea3e or deere8se tile RI:IRlber of
direeters, "Nhelher eltpressly !ly resehnieR ar BY iRlflliee.liell t1uoogli lfie eleeti.ell of a4ditiellal.
direetefS, &hal.l eeRstitule aR &lRellemeRt ae these ByllW.'5 effeeullg sttell ifteRlll!le er deer6llSell1
~ed in tbe articwt incomoration. As ol"Qvid~ jn the a~es q.( iJ)coroo[iltion. at Jw1
one member of~irectors s~. at all times. be a current mc;m.ber of the citv council
lUJJIe Citv of Asoen, COuo. and at least one other member of the boar~irectors sllal1
il.iU times. ~~me emDlovee otlhe City of Asnen. Colao. the City Council or't~~
~anae:er of the City of Asnen shall have the rieht to aODOlnt tbe two above dcscri~~
::~~~_o:v t~~e b~~~~ f!o~~:t:\heD~:O~~~e~re :r:ra~~~ ~~h1::na.n ;.~~~~:tr~
accordance wittuhe l!-rti~les of incorooration) shall be elected or reelected by the board of
directors at each annual meeting, and each _director shall hold office until the next annuai
meeting of the board of directors and thereafter until ~ director's successor shall have been
elected and qualified, or until ~ director's earlier death, resignation or removal. Directors
must be at least eighteen years old but need not be residents of Colorado. No person shall be
elected a director of the corporation such person has reached the age of 18 years. Any director
may be removed at any time, with or without cause, by a vote of three-fourths of the other
directors then in office.
Section 3.3 Vacancies. Any dircctor may resign at amy time by giving written
notice to the president or to the secretary of the corporation. Such resignation shall take effect
at the time specified therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any vacancy occurring in the board of
directors 2f.the c;orooration (pt~er than anv director anoointed,by th~ ptv Council or the City
Mana~er of t~e City of Asoen. Colorado. in accordance wilh the articles of incoroorationl may
be filled by the affirmative vote of a majority of the remaining directors though less than a
quorum. A director elected to fill a vacancy shall be elected for the unexpired term of such
director's predecessor in office. AllY direetel'Ship te be filled B)' feMell of aft iftcrease jll'lIle
IlIlMer af E1ireeters 31talll3e EtlleEI by the afRrmative _Ie of a maj8fi~ af the E1ireeters tReA in
aniee, ItIId a direel6r 5a ehasen shall held affies uRtil lfie nellt eleetion of E1ireetar-s ItIIEI
thereafter IIRIiI !he direeter's &lIeee5sar shall R&'.'e ~eeR eleeted ilftEl E1l1aliHeEI, er IInlil~e
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Section 3.4 Rel!ular Meetings. A regular annual meeting of the board of
directors shall be held during the month of _ at the time and place, either within or outside
Colorado, dctermined by the board, for thc purpose of electing directors and officers and for the
transaction of such other business as may come before the meeting. The board of directors may
provide by resolution the time and place, either within or outside Colorado, for the holding of
additional regular meetings.
Section 3.S Snecial Meetinl!s. Special meetings of the board of directors may
be called by or at the request of the president or any two directors. The person or persons
authorized to call special meetings of the board of directors may fi" any place as the place,
either within or outside Colorado, for holding any special meeting of the board called by them.
Section 3.6 Notice. Notice of each meeting of the board of directors stating
the place, day and hour of the meeting shall be given to each director at the director's business
address at least five days prior thereto by the mailing of written notice by first class, cenified
or registered mail, or at least two days prior thereto by personal delivery of written notice or
by telephonic, telegraphic, telex or facsimile notice (and the method of notice need not be the
same as to each director). If mailed, such notice shall be deemed to be given when dcposited
in the United States mail, with postage thereon prepaid. If telegraphed, such notice shall be
deemed to be given when the telegram is delivered to the telegraph company. If transmitted by
telex or facsimile, such notice shall be deemed to be given when the transmission is completed.
Any director may waive notice of any meeting before, at or after such meeting. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the e"press purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting unless otherwise required by statute.
Section 3.7 PresumDtion of Assen\. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate mattcr is taken
shall be presumed to have assented to the action taken unless such director's dissent shall be
entered in the minutes of the meeting or unless the director shall file a written dissent to such
action with the person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to a director who
voted in favor of such action,
Section 3.8 Quorum and Votinl!. A majority of the directors shall constitute
a quorum for the transaction of business at any meeting of the board of directors, and the vote
of a majority of the directors present in person at a meeting at which a quorum is prcscnt shall
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be the act of the board of directors, If less than a quorum is present at a meeting, a majority
of the directors present may adjourn the meeting from time to time without further notice other
than an announcement at the meeting, until a quorum shall be present. No director may vote
or act by proxy at any meeting of directors.
Section 3.9 Comoensation. Directors shall not receive compensation for their
services as such, although the reasonable expenses of directors of attelldaOce at board meetings
may be paid or reimbursed by the corporation. Directors shall not be disqualified to receive
reasonable compensation for services rendered to or for the benefit of the corporation in any
other capacity. .
Section 3.10 Executive and Other Committees. By one or more resolutions
adopted by a majority of the directors then in office, the board of directors may designate from
among its members an executive committee and one or more other committees, each of which,
to the extcnt provided in the resolution establishing such committee, shall have and may exercise
all of the authority of thc board of directors, except as prohibited by statute. The delegation of
authority to any committee shall not operate to relieve the board of directors or any member of
the board from any responsibility imposed by law. Rules governing procedures for meetings of
any committee of the board shall be as established by the board of directors, or in the absence
thereof, by the committee itself.
Section 3,11 Meetings by Telenhone. Members of the board of directors or any
committee thereof may participate in a meeting of the board or l:ornmitlee by means of
conference telephone or similar communications equipment by which all persons participating
in the meeting can hear each other at the same time. Such participation shall constitute presence
in person at the meeting.
Section 3.12 Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the directors or any committee thereof may be taken without a meeting if
a consent in writing, setting forth the action so taken, shaU be signed by all of the directors or
committee members entitled to vote with respect to the subject matter thereof. Such consent
(which may be signed in counterparts) shall have the same force and effect as a unanimous vote
of the directors or committee members.
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ARTICLE IV.
OFFICERS AND AGENTS
Section 4.1 Number and Oualifications, The elected officers of the corporation
shall be a president, one or more vice-presidents, a secretary and a llreasurer. The board of
directors may also appoint such other officers, assistant officers and agents, including an
executive director, a controller, assistant secretaries and assistant treasurers, as it may consider
necessary. One person may hold more than one office at a time, except that no person may
simultaneously hold the offices of president and secretary. Officers need not be directors of the
corporation. All officers must he at least eighteen years old.
Section 4.2 Election and Term of Office. The elected officers of the
corporation shall be elected by the board of directors at each regular annual meeting. If the
election of officers shall not be held at such meeting, such election shall be held as soon as
convenient thereafter. Each officer shall hold office until the officer's successor shall have been
duly elected and shall have qualified, or until the officer's earlier death, resignation or removal.
Section 4,3 Comoensation. The compensation of the officers, if any, shall be
as fixed from time to time by the board of directors, and no officer shall be prevented from
receiving a salary by reason of the fact that such officer is also a director of the corporation.
Section 4.4 Removal. Any officer or agent may be removed by the board of
directors whenever in its judgment the best interests of the corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not in itself create contract rights.
Section 4.5 Vacancies. Any officer may resign at any time, subject to any
rights or obligations under any existing contracts between the officer and the corporation, by
giving written notice to the president or to the board of directors. An officer's resignation shall
take effect at the time specified in such notice, and unless otherwillC specified therein, the
acceptance of such resignation shall not be necessary to make it effective. A vacancy in any
office, however occurring, may be filled by the board of directors for the unexpired portion of
the term,
Section 4.6 Authority and Duties of Officers. The officers of the corporation
shall have the authority and shall exercise the powers and perform the duties specified below and
as may be additionally specified by the president, the board of directors or these bylaws, except
that in any event each officer shall exercise such powers and perform such duties as may be
required by law.
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(a) President. The president shall, subject to the direction and
supervision of the board of directors, (i) be the chief executive officer of the corporation and
have general and active control of its affairs and business and general supervision of its officers,
agents and employees; (ii) preside at all meetings of the board of directors; (iii) see that ail
orders and resolutions of the board of directors are carried into effect; and (iv) perform all other
duties incident to the office of president and as from time to time may be assigned to the
president by the board of directors.
(b) Vice-Presidents. The vice-president or vice-presidents shall assist
the president and shall perform such duties as rnay'be assigned to them by the president or by
the board of directors. The vice-president (or if there is more than one, then the vice-president
designated by the board of directors, or if there be no such designation, then the vice-presidents
in order of their election) shall, at the request of the president, or in the president's absence or
inability or rcfusalto act, perform the duties of the president and when so acting shall have all
the powers of and be subject to aU the restrictions on the president.
(c) Secretary. Thc secretary shall (i) keep the minutes of the
proceedings of the board of directors and any committees of the board; (ii) see that all notices
are duly given in accordance with the provisions of these bylaws or as required by law; (iii) be
custodian of the corporate records and of the seal of the corporation; and (Iv) in gcneral,
perform all duties incident to thc office of secretary and such other duties as from time to time
may be assigned to the secretary by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to supervision by the
secretary.
(d) Treasurer. The treasurer shall (i) be the principal financial officer
of the corporation and have the care and custody of all its funds, securities, evidences of
indebtedness and other personal property and deposit the same in aC(;Qrdance with the
instructions of the board of directors; (ii) receive and give receipts and acceptances for moneys
paid in on aC(;Qunt of the corporation, and payout of the funds on.hand all bills, payrolls and
other just debts of the corporation of whatever nature upon maturity; (iii) unless there is a
controller, be the principal accounting officer of the corporation and as such prescribe and
maintain the methods and systems of accounting to be followed, keep complete books and
records of account, prepare and file all local, state and federal tax returns and related
documents, prescribe and maintain an adequate system of internal audit, and prepare and furnish
to the president and the board of directors statements of account showing the financial position
of the corporation and the results of its operations; (iv) upon request of the board, make such
rcports to it as. may be required at any time; and (v) perform all other duties incident to the
office of treasurer and such other duties as from time to time may be assigned to the treasurer
by the president orthc board of. directors, Assistant treasurers, if any, shall have the sarnc
powers and duties, subject to supervision by the treasurer.
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Section 4.1 SurelY Bonds. The board of directors may require any officer or
agent of the corporation to execute to the corporation a bond in such sums and with such sureties
as shall be satisfactory to the board, conditioned upon the faithful performance of such person's
duties and for the restoration to the corporation of all books, papers, vouchers, money and other
property of whatever kind in such person's possession or under such person's control belonging
to the corporation.
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ARTICLE V.
INDEMNIFICA nON
Section 5.1 Definitions. For purposes of this Article V, the following terms
shall have the meanings set forth below:
(a) "Corooration" means the corporation and, in addition to the
rcsulting or surviving corporation, any domestic or foreign predecessor entity of the corporation
in a merger, consolidation or other transaction in which the predecessor's eltistence ceased upon
consummation of the transaction.
(b) "Expenses. means the actual and reasonable expenses, including
attorneys' fees, incurred by a party in connection with a proceeding.
. (c) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to a private foundation or an
employee benefit plan) or expense incurred with respect to a proceediJ~g.
(d) "Official capacity" when used with respect to a director of the
corporation means the office of director in the corporation, and when used with respect to a
person in a capacity other than as a director (even if such person is also a director) means the
office in the corporation held by the officer or the employment relationship undertaken by the
employee on behalf of the corporation in the performance of his or her duties in his or her
capacity as such officer or employee, "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 when acting directly on behalf of such other corporation, partnership,
joint venture, trust, enterprise or plan as a director, officer, employee, fiduciary or agent
thereof.
(e) "~" means Lil,any person who was, is, or is threatened to be
made, a named defendant or respondent in a proceeding by reason of the fact that such person
is or was a director, officer or employee of the corporation or an offi~jll or emDlovee wi\h the
~v of Asoen, and !iU,any person who, while a director, officer or employee of the corporation
or an ofjicial or emDlovee with the City of Asoen, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, fiduciary 01' agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust, other enterprise or
employee benefit plan..J.l1Sl (Iii) the Citv of Asoen. A party shall be oonsidered to be serving
an employee benefit plan at the corporation's request if such party's duties to the corporation
also impose duties on or otherwise involve services by such party to tile plan or to participants
in or beneficiaries of the plan,
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fit (t) "Prnrp"tlimz" means any threatened, pending or completed action,
suit or proceeding, or any appeal therein, whether civil, criminal, administrative, arbitrative or
investigative (including an action by the corporation) and whether formal or informal.
Section 5.2 Ril!ht to Indemnification.
(a) Standards of Conduct. Except as provided in Section 5.2(d) below,
the corporation shall indemnify any party to a proceeding against liability incurred in or as a
result of the proceeding if (i) such party conducted himself or herself in good faith, (ii) such
party reasonably believed (A) in the case of a direcior acting in his or her official capacity, that
his or her conduct was in the corporation's best interests, or (B) in all other cases, that such
party's conduct was at least not opposed to the corporation's best interests, and (iii) in the case
of any criminal proceeding, such party had no reasonable cause to believe his or her conduct was
unlawful. For purposes of determining the applicable standard of conduct under this
Section 5.2, any patty acting in his or her official capacity who is also a director of the
corporation shall be held to the standard of conduct set forth in Section 5.2(a)(ii)(A), even if
such party is sued solely in a capacity other than as such director.
e
(b) Employee Benefit Plans. A party's conduct with respect to an
employee benefit plan for a purpose such party reasonably believed to be in the interests of the
panicipants in or beneficiaries of the plan is .conduct that satisfies the requirements of
Section 5.2(a)(ii)(B). A party's conduct withrespect.to an employee benefit plan for a purpose
that such party 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 Section 5, 2(a)(i).
(c) Settlement. 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 party did not meet the applicable standard of conduct set forth in Section
S.2(a).
(d) Indemnification Prohibited. Except as hereinafter set forth in. this
Section S.2(d), the corporation may not indemnify a party under this Section 5.2 either (i) in
connection with a proceeding by the corporation in which the party is or has been adjudged
liable for gross negligence or willful misconduct in the performance of the party's duty to the
corporation, or (ii) in connection with any proceeding charging improper personal benefit to the
party, whether or not involving action in the party's official capacity, in which the party was
adjudged liable on the basis that personal benefit was improperly received by the party (even if
the corporation was not thereby damaged). Notwithstanding the foregoing, the corporation shall
indemnify any such party if and to the extent required by the court conducting the proceeding,
or any other court of competent jurisdiction to which the party has applied, if it is determined
by such court, upon application by the party, that despite the adjudication of liability in the
circumstances in clauses (i) and (ii) of this Section S.2(d) or whether or not the party met the
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applicable standard of conduct set forth in Section 5.2(a), and il1l view of all relevant
circumstances, the party is fairly and reasonably entitled to indemnification for such expenses
as the court deems proper in accordance with the Colorado Nonprofit Corporation Code.
(e) Claims bv COQ)Oration. Indemnification permitted under this
Section 5.2 in connection with a proceeding by tile corporation shall be limited to expenses
incurred in coMection with the proceeding.
(f) Combined prn<'.....tlimzs. If any claim made by the corporation
against a party is joined with any other claim against'such party In a single proceeding, the claim
by tile corporation (and all e~penses related thereto) shall nevertheless be deemed the subject of
a separate and distinct proceeding for purposes of this Article.
Section 5.3 Prior Authorization Reauired. Any indemnification under Section
5.2 (unless ordered by a court) shall be made by the corporation only if authorized in the
specific case after a determination has been made that the party is eligible for indemnification
. in the circumstances because the party has met the applicable standard of conduct set forth in
Section 5.2(a) and after an evaluation has been made as to the reasonableness of the expenses.
Any such determination, evaluation and authorization shall be made by the board of directors
by a majority vote of a quorum of such board, which quorum shall consist of directors not
parties to the subject proceeding, or by such other. person or body as permitted by law.
Section 5.4 Success on Merits or Otherwise. Notwithstanding any other
proVision of this Article V, the corporation shall indemnify a party to the extent such party has
been successful, on the merits or otherwise, including without limitation, dismissal without
prejudice or settlement without admission of Iiabilily, in defense of any proceeding to which the
party was a party against expenses incurred by such party in connection therewith,
Section S,S Advancement of Exoenses. The corporation shall pay for or
reimburse the expenses, or a portion thereof, incurred by a party in advance of the final
disposition of the proceeding if; (a) the party furnishes tile corporation a written affirmation of
such party's good-faith belief that he or she has met the standard of conduct described in Section
5.2(a)(i); (b) the party furnishes the corporation a written undertaking, executed personally or
on behalf of such party, to repay the.advance if it is ultimately determined that the party did
not meet such standard of conduct; and (c) authorization of payment ,and a determination tIlat
the facts then known to those making the determination would not preclude indemnification
under this Article have been made in the manner provided in Section 5.3. The undertaking
required by clause (b) must be an unlimited general obligation of the party, but need not be
secured and may be accepted without reference to financial abilily to make repayment.
Section 5.6 Pavment Prnr.....ures. The corporation shall promptly act upon any
request for indemnification, which request must be in writing and accompanied by the order of
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court or other reasonably satisfactory evidence documenting disposition of the proceeding in the
case of indemnification under Section 5.4 and by the written affirmation and undertaking to
repay as required by Section S.S in the case of indemnification under such Section. The right
to indemnification and advances granted by this Article shall be enforceable in any court of
competent jurisdiction if the corporation denies the claim, in whole or in part, or if no
disposition of such claim is made within ninety days after written request for indemnification is
made. A party's expenses incurred in connection with successfully ,establishing such party's
right to indemnification, in whole or in part, in any such proceeding shall iUso be paid by the
corporation.
Section S. 7 Insurance. By action of the board of directors, notwithstanding any
interest of the directors in such action, the corporation may purchase and maintain insurance in
such amounts as the board of directors deems appropriate to protect itself and any person who
is or was a director, officer, employee, fiduciary or agent of the corporation, Of who, white 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 such
person in any such capacity or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify such person against such liability under
applicable provisions of law or this Article. Any such insurance may be procured from any
insurance company designated by the board of directors, whether such insurance company is
formed under the laws of Colorado or any other jurisdiction, including any insurance company
in which the corporation has an equity or any other interest, through stock ownership or
otherwise. The corporation may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of such sums as may
become necessary to effect indemnification as provided herein. In addition to tIWorel!oinl!. the
corooration. at a.1lt.imes after the initial commencement of any D~ysical construction or oneration
or te~tinS! of any facilities. s~tain and maintain comnrehensive 2eneralliaWlitv insurance.
,havinl! coveOll!e ill t~e alJlQ4pt of at least one million d,Qllar~. and~~rs' cornoensation
in~uf\nce. SuclJ..J2sllicies sh..all be noncance\i2le wijhQut Drior written nouce t9 the Citv of
Astle". The clIVor Astle" sbil1..be an additional named insur~es of insurance
i!1SJ eviqence o~ covera2'e. in a tom acceDtable to the City A sh~1.-.be nrovide4J.gJJ1e City
W Asnen.
Section 5.8 Ril!ht to Imoose Conditions to Indemnification. The corporation
shall have the right to impose, as conditions to any indemnification provided or permitted in this
Article, such reasonable requirements and conditions as may appear appropriate to the board of
directors in each specific case and circumstances, including but not limited to anyone or more
of the foltowing: (a) that any counsel representing the party to be indemnified in connection
with the defense or settlement of any proceeding shalt be counsel mutually agreeable to the party
and to the corporation; (b) that the corporation shall have the right, at its option, to assume and
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control the defense or settlement of any claim or proceeding made, initiated or threatened against
the party to be indemnified; and (c) that the corporation shaH be subrogated, to the extent of any
payments made by way of indemnification, to all of the indemnified party's right of r~very,
and that the party to be indemilified shall execute all writings and do everything necessary to
assure such rights of subrogation to the corporation. . . . .
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indemnitjcation o~ ~rsons sbilLbe uncond~tiona11
Section 5.9 Other Rights and Remedies. Except as limited by law,the
indemnification provided by this Article shall be in" addition to any ot1l1er rights which a party
may have or hereafter acquire under any law, provision of the articles of incorporation, any
other or further provision of these bylaws, vote of the board of directors, agreement, or
otherwise.
Section 5.10 Applicability: Effect. The indemnification provided in this Article
shall be applicable to acts or omissions that occurred prior to the adoption of this Article, shall
continue as to any party entitled to indemnification under this Article who has ceased to be a
director, officer or employee of the corporation or, at the request of the corporation, was serving
as and has since ceased to be a director, officer, partner, trustee, employee, fiduciary or agent
of any other domestic or foreign corporation, or of any partnership, joint venture, trust, other
enterprise or employee benefit plan, and shall inure to the benefit of the estate and personal
representatives of each such person. The repeal or amendment of this Article or of any Section
or provision hereof that would have the effect of limiting, qualifying or restricting any ofthe
powers or rights of indemnification provided or permitted in this Article shall not, solely by
reason of such repeal or amendment, eliminate, restrict or otherwise affect the right or power
of the corporation to indemnify any person, or affect any right of indemnification of such
person, with respect to any acts or omissions that occurred prior to such repeal or amendment.
All rights to indemnification under this Article shall be deemed to be provided by a contract
between the corporation and each party covered hereby.
Section 5,11 Indemnification of A2ents, The corporation shall have the right,
but shall not be obligated, to indemnify any agent of the corporation not otherwise covered by
this Article to the fullest extent permissible by the laws of Colorado. Unless otherwise provided
in any separate indemnification arrangement, any such indemnification shall be made only as
authorized in the specific case in the manner provided in Section 5.3.
Section 5.12 Savings Clause: Limitation. If this Article or any Section or
provision hereof shall be invalidated by any court on any ground, then the corporation shall
nevertheless indemnify each party otherwise entitled to indemnification hereunder to the fullest
extent permitted by law or any applicable provision of this Article that shall not have been
invalidated. Notwithstanding any other provision of these bylaws, the corporation shall neither
indemnify any person nor purchase any insurance in any manner or to any extent that would
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jeopardize or be inconsistent with the qualification of the corporation as an organization
described in section 501(c)(3) of the Internal Revenue Code, or that would result in the
imposition of any liability under section 4941 of the Internal Revenue Code.
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ARTICLE VI.
MISCELLANEOUS
Section 6,1 Account Books. Minutes. Etc. The corporation shall keep correct
and complete books and records of account and shall keep minutes of the proceedings of its
board of directors and committees. All books and records of the corporation may be inspected
by any director, or that director's authorized agent or attorney, for any proper purpose at any
reasonable time.
Section 6.2 Fiscal Year. The fiscal year of the lcorporation shall be as
established by the board of directors.
Section 6.3 Conveyan<;es and Encumbrances. Property of the corporation may
be assigned, conveyed or encumbered by such officers of the corporation as may be authorized
to do so by the board of directQrs, and such authorized persons shall have power to execute and
deliver any and all instruments of assignment, conveyance and encumbrance; however, the saie,
exchange, lease or other disposition of all or substantially all of the propeny and assets of the
corporation shall be authorized only in the manner prescribed by applicable statute.
Section 6.4 Desilmated ContributioO~. The corporation may accept any
designated contribution, grant, bequest or devise consistent with its general tax-exempt purposes,
as set forth in the articles of incorporation. As so limited, donor-designated contributions will
be accepted for special funds, purposes or uses, and such designations generally will be honored.
However, the corporation shall reserve all right, title and interest in and to and control of such
contributions, as well as full discretion as to the ultimate expenditure lOr distribution thereof in
connection with any such special fund, purpose or use. Further, the corporation shall acquire
and retain sufficient control over all donated funds (including designated contributions) to assure
that such funds will be used to carry out the corporation's tax-exempt purposes.
Section 6.5 Conflicts of Interest. If any person who fts a director or officer of
the corporation is aware that the corporation is about to enter into any business transaction
directly or indirectly with such person, any member of that person's family, or any entity in
which that person has any legal, equitable or fiduciary interest or position, including without
limitation as a director, officer, shareholder, partner, beneficiary or trustee, such person shall
(a) immediately inform those charged with approving the transaction on behalf of the corporation
of such person's interest or position, (b) aid the persons charged with making the decision by
disclosing any material facts within such person's knowledge that bear on the advisability of such
transaction from the standpoint of the Corporation, and (c) not be entitled to vote on the decision
to enter into such transaction.
Section 6.6 Loans to Directors and Officers Prohibited. No loans shall be
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made by the corporation to any of its directors or officers. Any director or officer who assents
to or participates in the making of any such loan shall be liable to. the corporntion for the amount
of such loan until it is repaid.
Section 6.7 References to Internal Revenue Code. All references in these
bylaws to provisions of the Internal Revenue Code are to the provisions of the Internal Revenue
Code of 1986, as amended, and to the corresponding provisions of any subsequent federal tax
laws.
Section 6.8 Amendments. The power to alter, amend or repeal these bylaws
and adopt new bylaws shall be vested in the board of directors,
Section 6.9 Severability. The invalidity of any provision of these bylaws shall
not affect the other provisions hereof, and in such event these bylaws shall be construed in all
respects as if such invalid provision were omitted.
(END)
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548 Race Street Aspen,
Mayor and Council Members
City of Aspen
131 S. Galena St.
Aspen, Co. 81611
Colorado 81611
May 9.
303 925-6431
1994
Re: Resolution establishing a 6320 Corporation for the purpose(s) of
creating a street railway system within the city limits.
Dear Mayor and Council Members,
Attached for your and staffs review are L.he following joc-ument,g
with a brief description of their purpose.
ResolutioIl # api,roving the organization or the ASF'8~ o~ree~
Railway Corroratic:ll: This document is your formal 3E'prc1val of the
establishmerlt ,)f the organization whose purpose will be to crea t~e
capital improvements necessary to begin a street railway
transportation system and to obtain the necessary approvals as
appropriat,e.
Articl~?::-;
on the Board
operate.
OI Incorporation: This document spells out who will be
of directors and the basic criteria under which they
Bylaws: This is the document that establishes how the newly
created board shall function.
Organizational Consent of the Directors: is the first document
that the newly appointed Directors of the Aspen Street Railway Corp.
will enact establishing the basic operating and organizational
criteria under which the Corporation will act.
The ad-hoc committee has recommended the following people be
appointed as Directors of the Corporation.
Mr. Jon Busch; 543 Race Street, Aspen, Co. 81611
Mr. William Dinsmoor, 201 E. Main St. 1 Aspen, Co.
Mr. Roger Hunt. 501 W. Hallam. Aspen, Co.
Mr. William Efting, 131 S. Galena, Aspen 00.
An Aspen City Council Person
925-6431
925-6446
925-4414
920-5212
We will be at the Council meeting in order to answer
that you may have about any of the docum
any questions
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ORGANIZATIONAL CONSENT
OF
DIRECTORS
OF
ASPEN STREET RAILWAY COMPANY
Pursuant to Section 7-23-110 of the Colorado Revised Statutes, the undersigned,
being all of the directors of Aspen Street Railway Company (the "corporation"), hereby
unanimously consent to, vote in favor of and adopt the following resolutions:
I
RESOLVED that the certificate of incorporation of the corporation issued by the
Colorado Secretary of State be placed in the minute book, together with the articles of
incorporation attached thereto.
II
RESOLVED that the bylaws attached to this consent of directors are adopted as
the bylaws of the corporation, and that a copy of such bylaws be placed in the
corporation's minute book.
III
RESOLVED that the seal of this corporation be circular in form and contain the
name of the corporation, the year of its organization and the words "Seal" and
"Colorado," and that an impression of said seal be made on the margin of this page.
IV
RESOLVED that the officers of the corporation, if they deem such action
appropriate, are authorized to apply to the Internal Revenue Service for recognition of
the corporation as a tax exempt organization and to execute and deliver all such
applications, certificates, powers of attorney and other instruments and perform all such
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other acts as any of them may deem necessary or appropriate to obtain such recognition.
v
RESOLVED that the is designated a depository of the
corporation, that the customary forms of resolution of said bank conferring banking
authority upon certain of the corporation's officers are hereby adopted and that a copy
of such resolutions be placed in the corporation's minute book.
VI
RESOLVED that the fiscal year of the corporation shall commence on January
1 and end on December 31 of each year.
VII
RESOLVED that for the purpose of authorizing the corporation to conduct its
affairs in any state, territory or dependency of the United States or any foreign country
in which it is necessary or expedient, in the judgment of the officers of the corporation,
for the corporation to cQnduct affairs, the appropriate officers of the corporation are
authorized to appoint and substitute all necessary agents or attorneys for service of
process, to designate and change the location of all necessary statutory offices and to
make and file all necessary certificates, reports, powers of attorney and other instruments
as may be required by the laws of such state, territory, dependency or country to
authorize the corporation to conduct affairs therein, and whenever it is expedient, in the
judgment of the officers of the corporation, for the corporation to cease conducting
affairs therein and withdraw therefrom, to revoke any appointment of agent or attorney
for service of process, and to file such certificates, reports, revocations of appointment
and surrenders of authority as may be necessary to terminate the authority of the
corporation to conduct affairs in such state, territory, dependency or country.
VIII
RESOLVED that all actions taken on behalf of the corporation prior to the date
of this consent of directors by any of the persons elected herein as officers are approved
and ratified in all respects.
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IX
RESOLVED that the following individuals are elected officiers of the corporation
as indicated below:
President
Vice President
Vice President
Secretary
Treasurer
EXECUTED this _ day of
,19_0
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