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EXHIBIT 3.2
BY LAWS
OF
INDUSTRIALEX MANUFACTURING CORP.
ARTICLE I - OFFICES
1.1 PRINCIPAL OFFICE. The principal offices of Industrialex
Manufacturing Corp. (the "Corporation") shall initially be at 63-A S. Pratt
Parkway, Longmont, Colorado 80301, but the Corporation may, in the discretion of
the board of directors, maintain offices wherever the business of the
Corporation may require.
1.2 REGISTERED OFFICE AND AGENT. The Corporation shall continuously
maintain in the State of Colorado a registered office and a registered agent
whose business office is identical with the registered office. The initial
registered office and the initial registered agent are specified in the original
Articles of Incorporation for the Corporation. The Corporation may change its
registered office, its registered agent, or both, upon filing a statement as
specified by law in the office of the Secretary of State of Colorado.
ARTICLE II - SHAREHOLDERS
2.1 TIME AND PLACE. Any meeting of the shareholders may be held at such
time and place, within or outside the State of Colorado, as may be fixed by the
board of directors or as shall be specified in the notice or waiver of notice of
the meeting. If the place for a meeting is not fixed by the board of directors,
such meeting shall be held at the Corporation's principal office.
2.2 ANNUAL SHAREHOLDERS' MEETING. The annual shareholders' meeting
shall be held on the date and at the time and place fixed from time to time by
the board of directors; provided, however, that the first annual meeting shall
be held on a date that is within six months after the close of the first fiscal
year of the Corporation, and each successive annual meeting shall be held on a
date that is within the earlier of six months after the close of the last fiscal
year or fifteen months after the last annual meeting.
2.3 SPECIAL SHAREHOLDERS' MEETING. A special shareholders meeting for
any purpose or purposes, may be called by the board of directors or the
president. The Corporation shall also hold a special shareholders meeting in the
event it receives, in the manner specified in Section 8.3, one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by the holders of shares representing not less than ten
percent (10%) of all of the votes entitled to be cast on any issue to be
determined at the meeting. Special meetings shall be held at the principal
office of the Corporation or at such other place as the board of directors or
the president may determine.
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2.4 RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders entitled to
(i) notice of or to vote at any shareholders' meeting or at any adjournment of a
shareholders' meeting, (ii) demand a special shareholders meeting, (iii) take
any other action or (iv) receive payment of a share dividend or a distribution,
or for any other purpose, the board of directors may fix a future date as the
record date for such determination of shareholders. The record date may be fixed
not more than seventy days before the date of the proposed action.
(b) Unless otherwise specified when the record date is fixed, the
time of day for determination of shareholders of record shall be as of the
Corporation's close of business on the record date.
(c) A determination of shareholders entitled to be given notice of
or to vote at a shareholders' meeting is effective for any adjournment of the
meeting unless the board of directors fixes a new record date, which the board
shall do if the meeting is adjourned to a date more than one hundred twenty days
after the date fixed for the original meeting.
(d) If no record date is otherwise fixed, the record date for
determining shareholders entitled to be given notice of and to vote at an annual
or special shareholders' meeting is the day before the first notice is given to
shareholders.
(e) The record date for determining shareholders entitled to take
action without a meeting pursuant to Section 2.11 is the date a writing upon
which the action is taken is first received by the Corporation.
2.5 VOTING LIST.
(a) After a record date is fixed for a shareholders meeting, the
secretary shall prepare a list of the names of all its shareholders who are
entitled to be given notice of the meeting. The list (i) shall be arranged by
voting groups and within each voting group by class or series of shares, (ii)
shall be alphabetical within each class or series and (iii) shall show the
address of, and the number of shares of each such class and series that are held
by, each shareholder.
(b) The shareholders' list shall be available for inspection by any
shareholder, beginning the earlier of ten days before the meeting for which the
list was prepared or two business days after notice of the meeting is given and
continuing through the meeting, and any adjournment thereof, at the
Corporation's principal office or at a place identified in the notice of the
meeting in the city where the meeting will be held.
(c) The secretary shall make the shareholders list available at the
meeting, and any shareholder or agent or attorney of a shareholder is entitled
to inspect the list at any time during the meeting or any adjournment thereof.
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2.6 NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders of the date,
time, and place of each annual and special shareholders meeting no fewer than
ten nor more than sixty days before the date of the meeting; except that, if the
articles of incorporation are to be amended to increase the number of authorized
shares, at least thirty days notice shall be given. Except as otherwise required
by the Colorado Business Corporation Act (the "Act"), the secretary shall be
required to give such notice only to shareholders entitled to vote at the
meeting.
(b) Notice of an annual shareholders meeting need not include a
description of the purpose or purposes for which the meeting is called unless a
purpose of the meeting is to consider an amendment to the articles of
incorporation, a restatement of the articles of incorporation, a plan of merger
or share exchange, disposition of substantially all of the property of the
Corporation, consent by the Corporation to the disposition of property by
another entity, or dissolution of the Corporation.
(c) Notice of a special shareholders meeting shall include a
description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders meeting shall be in writing and shall
be given:
(i) by deposit in the United States mail, properly addressed to
the shareholder's address shown in the Corporation's current record of
shareholders, first class postage prepaid, and, if so given, shall be effective
when mailed; or
(ii) by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier or by personal delivery to
the shareholder, and, if so given, shall be effective when actually received by
the shareholder.
(e) If an annual or special shareholders meeting is adjourned to a
different date, time, or place, notice need not be given of the new date, time,
or place if the new date, time, or place is announced at the meeting before
adjournment; provided, however, that, if a new record date for the adjourned
meeting is fixed pursuant to Section 2.4, notice of the adjourned meeting shall
be given to persons who are shareholders as of the new record date.
(f) If three successive notices are given by the Corporation,
whether with respect to a shareholders meeting or otherwise, to a shareholder
and are returned as undeliverable, no further notices to such shareholder shall
be necessary until another address for the shareholder is made known to the
Corporation.
2.7 QUORUM. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. A majority of the votes entitled to be cast on the
matter by the voting group shall constitute a quorum of that voting group for
action on the matter. If a quorum does not exist with respect to any voting
group, the president or any shareholder or proxy that is present at the meeting,
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whether or not a member of that voting group, may adjourn the meeting to a
different date, time, or place, and (subject to the next sentence) notice need
not be given of the new date, time, or place if the new date, time, or place is
announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or must be fixed pursuant to Section 2.4, notice of the
adjourned meeting shall be given pursuant to Section 2.6 to persons who are
shareholders as of the new record date. At any adjourned meeting at which a
quorum exists, any matter may be acted upon that could have been acted upon at
the meeting originally called; provided, however, that, if new notice is given
of the adjourned meeting, then such notice shall state the purpose or purposes
of the adjourned meeting sufficiently to permit action on such matters. Once a
share is represented for any purpose at a meeting, including the purpose of
determining that a quorum exists, it is deemed present for quorum purposes for
the remainder of the meeting and for any adjournment of that meeting unless a
new record date is or shall be set for that adjourned meeting.
2.8 VOTING ENTITLEMENT OF SHARES. Except as stated in the articles of
incorporation, each outstanding share, regardless of class, is entitled to one
vote, and each fractional share is entitled to a corresponding fractional vote,
on each matter voted on at a shareholders meeting.
2.9 PROXIES, ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the
Corporation until the appointment is received by the Corporation. An appointment
is valid for eleven months unless a different period is expressly provided in
the appointment form.
(c) The Corporation may accept or reject any appointment of a
proxy, revocation of appointment of a proxy, vote, consent, waiver, or other
writing purportedly signed by or for a shareholder, if such acceptance or
rejection is in accordance with the provisions of Sections 7-107-203 and
7-107-205 of the Colorado Business Corporation Act.
2.10 WAIVER OF NOTICE.
(a) A shareholder may waive any notice required by the Colorado
Business Corporation Act, the articles of incorporation or these Bylaws, whether
before or after the date or time stated in the notice as the date or time when
any action will occur or has occurred. The waiver shall 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, but such
delivery and filing shall not be conditions of the effectiveness of the waiver.
(b) A shareholder's attendance at a meeting (i) waives objection to
lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting because of lack of notice or defective notice and (ii) waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
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2.11 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required or
permitted to be taken at a shareholders' meeting may be taken without a meeting
if all of the shareholders entitled to vote thereon consent to such action in
writing. Action taken pursuant to this Section 2.11 shall be effective when the
Corporation has received writings that describe and consent to the action,
signed by all of the shareholders entitled to vote thereon. Action taken
pursuant to this Section 2.11 shall be effective as of the date the last writing
necessary to effect the action is received by the Corporation, unless all of the
writings necessary to effect the action specify another date, which may be
before or after the date the writings are received by the Corporation. Such
action shall have the same effect as action taken at a meeting of shareholders
and may be described as such in any document. Any shareholder who has signed a
writing describing and consenting to an action taken pursuant to this Section
2.11 may revoke such consent by a writing signed by the shareholder describing
the action and stating that the shareholder's prior consent thereto is revoked,
if such writing is received by the Corporation before the effectiveness of the
action.
2.12 MEETINGS BY TELECOMMUNICATIONS. Any or all of the shareholders may
participate in an annual or special shareholders meeting by, or the meeting may
be conducted through the use of, any means of communication by which all persons
participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III - DIRECTORS
3.1 AUTHORITY OF THE BOARD OF DIRECTORS. The corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a board of directors.
3.2 NUMBER. The number of directors shall be fixed by resolution of the
board of directors from time to time and may be increased or decreased by
resolution adopted by the board of directors from time to time, but no decrease
in the number of directors shall have the effect of shortening the term of any
incumbent director.
3.3 QUALIFICATION. Directors shall be natural persons at least eighteen
years old but need not be residents of the State of Colorado or shareholders of
the Corporation.
3.4 ELECTION. The board of directors shall be elected at the annual
meeting of the shareholders or at a special meeting called for that purpose.
3.5 TERM. Each director shall be elected to hold office until the next
annual meeting of shareholders and until the director's successor is elected and
qualified.
3.6 RESIGNATION. A director may resign at any time by giving written
notice of his or her resignation to any other director or (if the director is
not also the secretary) to the secretary. The resignation shall be effective
when it is received by the other director or secretary,
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as the case may be, unless the notice of resignation specifies a later effective
date. Acceptance of such resignation shall not be necessary to make it effective
unless the notice so provides.
3.7 REMOVAL. Any director may be removed by the shareholders, with or
without cause, at a meeting called for that purpose. The notice of the meeting
shall state that the purpose, or one of the purposes, of the meeting is removal
of the director. A director may be removed only if the number of votes cast in
favor of removal exceeds the number of votes cast against removal.
3.8 VACANCIES. If a vacancy occurs on the board of directors, including
a vacancy resulting from an increase in the number of directors:
(i) The shareholders may fill the vacancy at the next annual
meeting or at a special meeting called for that purpose; or
(ii) The board of directors may fill the vacancy; or
(iii) If the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office.
3.9 MEETINGS. The board of directors may hold regular or special
meetings within or outside of Colorado. A regular meeting shall be held without
notice immediately after and at the same place as the annual meeting of the
shareholders. The board of directors may, by resolution, establish other dates,
times and places for additional regular meetings, which may thereafter be held
without further notice. Special meetings may be called by the president or by
any two directors and shall be held at the principal office of the Corporation
unless otherwise specified in the notice of the meeting. At any time when the
board consists of a single director, that director may act at any time, date, or
place without notice.
3.10 NOTICE OF SPECIAL MEETING. Notice of a special meeting shall be
given to every director at least twenty four hours before the time of the
meeting, stating the date, time, and place of the meeting. The notice need not
describe the purpose of the meeting. Notice may be given orally to the director,
personally or by telephone or other wire or wireless communication. Notice may
also be given in writing by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier. Notice shall be effective
at the earliest of (a) the time it is received; (b) five days after it is
deposited in the United States mail, properly addressed to the last address for
the director shown on the records of the Corporation, first class postage
prepaid or (c) the date shown on the return receipt if mailed by registered or
certified mail, return receipt requested, postage prepaid, in the United States
mail and if the return receipt is signed by the director to which the notice is
addressed.
3.11 QUORUM. Except as provided in Section 3.8, a majority of the
number of directors fixed in accordance with these Bylaws shall constitute a
quorum for the transaction of business at all meetings of the board of
directors. The act of a majority of the directors present at
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any meeting at which a quorum is present shall be the act of the board of
directors, except as otherwise specifically required by law.
3.12 WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting before or after
the time and date of the meeting stated in the notice. Except as provided by
Section 3.12(b), the waiver shall be in writing and shall be signed by the
director. Such waiver shall be delivered to the secretary for filing with the
corporate records, but such delivery and filing shall not be conditions of the
effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting
waives any required notice to him or her of the meeting unless, at the beginning
of the meeting or promptly upon his or her later arrival, the director objects
to holding the meeting or transacting 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.
3.13 MEETINGS BY TELECOMMUNICATIONS. One or more directors may
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 deemed to be present in person at the meeting.
3.14 DEEMED ASSENT TO ACTION. A director who is present at a meeting of
the board of directors when corporate action is taken shall be deemed to have
assented to all action taken at the meeting unless
(i) The director objects at the beginning of the meeting, or
promptly upon his or her arrival, to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to any action taken at
the meeting;
(ii) The director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in the minutes
of the meeting; or
(iii) The director causes written notice of his or her dissent
or abstention as to any specific action to be received by the presiding officer
of the meeting before adjournment of the meeting or by the secretary (or, if the
director is the secretary, by another director) promptly after adjournment of
the meeting.
The right of dissent or abstention pursuant to this Section 3.14 as to a
specific action is not available to a director who votes in favor of the action
taken.
3.15 ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted by law to be taken at a board of directors meeting may be taken
without a meeting if all members of the board consent to such action in writing.
The action shall be deemed to have been so taken by the board at the time the
last director signs a writing describing the action taken,
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unless, before such time, any director has revoked his or her consent by a
writing signed by the director and received by the president or the secretary or
any other person authorized by board of directors to receive such a revocation.
Such action shall be effective at the time and date it is so taken unless the
directors establish a different effective time or date. Such action has the same
effect as action taken at a meeting of directors and may be described as such in
any document.
ARTICLE IV - COMMITTEES OF THE BOARD OF DIRECTORS
4.1 AUTHORITY OF THE BOARD OF DIRECTORS TO DESIGNATE COMMITTEES.
Subject to the provisions of section 7-109-106 of the Act, the board of
directors may create one or more committees and appoint one or more members of
the board of directors to serve on them. The creation of a committee and
appointment of members to it shall require the approval of a majority of all the
directors in office when the action is taken, whether or not those directors
constitute a quorum of the board.
4.2 COMMITTEE PROCEDURES. The provisions of these bylaws governing
meetings, action without meeting, notice, waiver of notice, and quorum and
voting requirements of the board of directors apply to committees and their
members as well.
4.3 COMMITTEE POWERS AND AUTHORITY. To the extent specified by
resolution adopted from time to time by a majority of all the directors in
office when the resolution is adopted, whether or not those directors constitute
a quorum of the board, each committee shall exercise the authority of the board
of directors with respect to the corporate powers and the management of the
business and affairs of the Corporation, except that a committee shall not:
(a) authorize distributions;
(b) approve or propose to shareholders action that the Colorado
Business Corporation Act requires to be approved by shareholders;
(c) fill vacancies on the board of directors or on any of its
committees;
(d) amend the articles of incorporation pursuant to section
7-110-102 of the Colorado Business Corporation Act;
(e) adopt, amend, or repeal bylaws;
(f) approve a plan of merger not requiring shareholder approval;
(g) authorize or approve reacquisition of shares, except according
to a formula or method prescribed by the board of directors; or
(h) authorize or approve the issuance or sale of shares, or a
contract for the sale of shares, or determine the designation and relative
rights, preferences, and limitations of
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a class or series of shares, except that the board of directors may authorize a
committee or an officer to do so within limits specifically prescribed by the
board of directors.
4.4 STANDARD OF CONDUCT. The creation of, delegation of authority to,
or action by, a committee does not alone constitute compliance by a director
with applicable standards of conduct.
ARTICLE V - OFFICERS
5.1 GENERAL. The Corporation shall have as officers a president, a
secretary, and a treasurer, who shall be appointed by the board of directors.
The board of directors may appoint as additional officers a chairman and other
officers of the board. The board of directors, the president, and such other
subordinate officers as the board of directors may authorize from time to time,
acting singly, may appoint as additional officers one or more vice presidents,
assistant secretaries, assistant treasurers, and such other subordinate officers
as the board of directors, the president, or such other appointing officers deem
necessary or appropriate. The officers of the Corporation shall hold their
offices for such terms and shall exercise such authority and perform such duties
as shall be determined from time to time by these Bylaws, the board of
directors, or (with respect to officers whom are appointed by the president or
other appointing officers) the persons appointing them; provided, however, that
the board of directors may change the term of offices and the authority of any
officer appointed by the president or other appointing officers. Any two or more
offices may be held by the same person. The officers of the Corporation shall be
natural persons at least eighteen years old.
5.2 TERM. Each officer shall hold office from the time of appointment
until the time of removal or resignation pursuant to Section 3.6 or until the
officer's death.
5.3 REMOVAL AND RESIGNATION. Any officer appointed by the board of
directors may be removed at any time by the board of directors. Any officer
appointed by the president or other appointing officer may be removed at any
time by the board of directors or by the person appointing the officer. Any
officer may resign at any time by giving written notice of resignation to any
director (or to any director other than the resigning officer if the officer is
also a director), to the president, to the secretary or to the officer who
appointed the officer. Acceptance of such resignation shall not be necessary to
make it effective, unless the notice so provides.
5.4 PRESIDENT AND CHIEF EXECUTIVE OFFICER. The president and chief
executive officer of the Corporation shall perform such duties and exercise such
powers as usually appertain to such position and such other duties as may be
prescribed by the stockholders, the Board or the Executive Committee (if any)
from time to time. The president shall have the power, subject to the approval
of the Board of Directors, to appoint and remove any subordinate officers,
agents and employees, including Assistant Secretaries and Assistant Treasurers.
The president shall keep the Board and the Executive Committee (if any) fully
informed and shall consult them concerning the business of the Corporation. The
president may sign, with the Secretary or another officer of the Corporation
thereunto authorized by the Board (if necessary), certificates for shares of the
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Corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts or
other instruments, the issue or execution of which shall have been authorized by
resolution of the Board, except in cases where the signing and execution thereof
has been expressly delegated by these Bylaws or by the Board to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
executed. The president shall vote, or give a proxy to any other officer of the
Corporation to vote, all shares of stock of any other corporation standing in
the name of the Corporation.
5.5 VICE PRESIDENT. The vice president, if any, or, if there are more
than one, the vice presidents in the order determined by the board of directors
or the president (or, if no such determination is made, in the order of their
appointment), shall be the officer or officers next in seniority after the
president. Each vice president shall have such authority and duties as are
prescribed by the board of directors or the president. Upon the death, absence,
or disability of the president, the vice president, if any, or, if there are
more than one, the vice presidents in the order of seniority as determined
above, shall have the authority and duties of the president.
5.6 SECRETARY. The secretary shall be responsible for the preparation
and maintenance of minutes of the meetings of the board of directors and of the
shareholders and of the other records and information required to be kept by the
Corporation under section 7-116-101 of the Act and for authenticating records of
the Corporation. The secretary shall also give, or cause to be given, notice of
all meetings of the shareholders and special meetings of the board of directors,
keep the minutes of such meetings, have charge of the corporate seal and have
authority to affix the corporate seal to any instrument requiring it (and, when
so affixed, it may be attested by the secretary's signature), be responsible for
the maintenance of all other corporate records and files and for the preparation
and filing of reports to governmental agencies (other than tax returns), and
have such other authority and duties as are appropriate and customary for the
office of secretary, except as the same may be expanded or limited by the board
of directors from time to time.
5.7 TREASURER. The treasurer shall have control of the funds and the
care and custody of all stocks, bonds, and other securities owned by the
Corporation, and shall be responsible for the preparation and filing of tax
returns. The treasurer shall receive all moneys paid to the Corporation and,
subject to any limits imposed by the board of directors, shall have authority to
give receipts and vouchers, to sign and endorse checks and warrants in the
Corporation's name and on the Corporation's behalf, and give full discharge for
the same. The treasurer shall also have charge of disbursement of funds of the
Corporation, shall keep full and accurate records of the receipts and
disbursements, and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors. The treasurer shall have such additional
authority and duties as are appropriate and customary for the office of
treasurer, except as the same may be expanded or limited by the board of
directors from time to time.
5.8 COMPENSATION. Officers shall receive such compensation for their
services as may be authorized or ratified by the board of directors. Election or
appointment of an officer shall not of itself create a contractual right to
compensation for services performed as such officer.
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ARTICLE VI - INDEMNIFICATION
6.1 DEFINITIONS. As used in this Article VI:
(a) "Corporation" includes any domestic or foreign entity that is a
predecessor of the Corporation by reason of a merger or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, fiduciary or agent of another domestic or foreign corporation or other
person or of an employee benefit plan. A director is considered to be serving an
employee benefit plan at the Corporation's request if his or her duties to the
Corporation also impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(c) "Expenses" includes counsel fees.
(d) "Liability" means the obligation incurred with respect to a
proceeding to pay a judgment, settlement, penalty, fine, including an excise tax
assessed with respect to an employee benefit plan, or reasonable expenses.
(e) "Official capacity" means, when used with respect to a
director, the office of director in the Corporation and, when used with respect
to a person other than a director as contemplated in Section 6.7, the office in
the Corporation held by the officer or the employment, fiduciary or agency
relationship undertaken by the employee, fiduciary or agent on behalf of the
Corporation. "Official capacity" does not include service for any other domestic
or foreign corporation or other person or employee benefit plan.
(f) "Party" includes a person who was, is or is threatened to be
made, a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal.
6.2 AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Section 6.2(d), the Corporation shall
indemnify a person made a party to a proceeding because the person is or was a
director against liability incurred in the proceeding if:
(i) The person conducted himself or herself in good faith; and
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(ii) The person reasonably believed:
(A) In the case of conduct in an official capacity with
the Corporation, that his or her conduct was in the Corporation's best
interests; and
(B) In all other cases, that his or her conduct was at
least not opposed to the Corporation's best interests; and
(iii) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose the director reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirement of Section 6.2(a)(ii)(B). A director's conduct with respect to an
employee benefit plan for a purpose that the director 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 6.2(a)(i).
(c) The termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Section 6.2.
(d) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation may not indemnify a director under this Section
6.2:
(i) In connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to the Corporation; or
(ii) In connection with any other proceeding charging that the
director derived an improper personal benefit, whether or not involving action
in an official capacity, in which proceeding the director was adjudged liable on
the basis that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Section 6.2 in connection
with a proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with the proceeding.
6.3 MANDATORY INDEMNIFICATION OF DIRECTORS. The Corporation shall
indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the person was a party because the person is
or was a director, against reasonable expenses incurred by him or her in
connection with the proceeding.
6.4 ADVANCE OF EXPENSES TO DIRECTORS.
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(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(i) The director furnishes to the Corporation a written
affirmation of the director's good faith belief that he or she has met the
standard of conduct described in Section 6.2.
(ii) The director furnishes to the Corporation a written
undertaking, executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that he or she did not meet the standard
of conduct; and
(iii) A determination is made that the facts then known to
those making the determination would not preclude indemnification under this
Article VI.
(b) The undertaking required by Section 6.4(a)(ii) shall be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this
Section 6.4 shall be made in the manner specified in Section 6.6.
6.5 COURT-ORDERED INDEMNIFICATION OF DIRECTORS. A director who is or
was a party to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court, after giving any notice the court
considers necessary, may order indemnification in the following manner:
(i) If it determines that the director is entitled to mandatory
indemnification under Section 6.3, the court shall order indemnification, in
which case the court shall also order the Corporation to pay the director's
reasonable expenses incurred to obtain court-ordered indemnification.
(ii) If it determines that the director is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director met the standard of conduct set forth
in Section 6.2(a) or was adjudged liable in the circumstances described in
Section 6.2(d), 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 Section
6.2(d) is limited to reasonable expenses incurred in connection with the
proceeding and reasonable expenses incurred to obtain court ordered
indemnification.
6.6 DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF DIRECTORS.
(a) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation shall not indemnify a director under Section 6.2
unless authorized in the specific case after a determination has been made that
indemnification of the director is
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permissible in the circumstances because the director has met the standard of
conduct set forth in Section 6.2. The Corporation shall not advance expenses to
a director under Section 6.4 unless authorized in the specific case after the
written affirmation and undertaking required by Section 6.4(a)(i) and 6.4(a)(ii)
are received and the determination required by Section 6.4(a)(iii) has been
made.
(b) The determinations required by Section 6.6(a) shall be made:
(i) By the board of directors by a majority vote of those
present at a meeting at which a quorum is present, and only those directors not
parties to the proceeding shall be counted in satisfying the quorum; or
(ii) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board of directors, which
committee shall consist of two or more directors not parties to the proceeding;
except that directors who are parties to the proceeding may participate in the
designation of directors for the committee.
(c) If a quorum cannot be obtained as contemplated in Section
6.6(b)(i), and a committee cannot be established under Section 6.6(b)(ii), or
even if a quorum is obtained or a committee is designated, if a majority of the
directors constituting such quorum or such committee so directs, the
determination required to be made by Section 6.6(a) shall be made:
(i) By independent legal counsel selected by a vote of the
board of directors or the committee in the manner specified in Section 6.6(b)(i)
or 6.6(b)(ii), or, if a quorum of the full board cannot be obtained and a
committee cannot be established, by independent legal counsel selected by a
majority vote of the full board of directors; or
(ii) By the shareholders.
(d) Authorization of indemnification and advance of expenses shall
be made in the same manner as the determination that indemnification or advance
of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is required or permissible is made by
independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected such counsel.
6.7 INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS.
(a) The Corporation shall indemnify and advance expenses to an
officer to the same extent as a director.
(b) The Corporation may indemnify and advance expenses to an
employee, fiduciary or agent of the Corporation to the same extent as to a
director.
(c) The Corporation may also indemnify and advance expenses to an
officer, employee, fiduciary or agent who is not a director to a greater extent
than is provided in
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these Bylaws, if not inconsistent with public policy, and if provided for by
general or specific action of its board of directors or shareholders or by
contract.
6.8 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of a person who is or was a director, officer, employee, fiduciary or
agent of the Corporation, or who, while a director, officer, employee, fiduciary
or agent of the Corporation, is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of
another domestic or foreign corporation or other person or of an employee
benefit plan, against liability asserted against or incurred by the person 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 the person against the same liability under Section 6.2, 6.3, or 6.7.
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
this state or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the Corporation has an equity or any
other interest through stock ownership or otherwise.
6.9 NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF DIRECTOR. If the
Corporation indemnifies or advances expenses to a director under this Article VI
in connection with a proceeding by or in the right of the Corporation, the
Corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII - SHARES
7.1 CERTIFICATES. Certificates representing shares of the capital stock
of the Corporation shall be in such form as is approved by the board of
directors and shall be signed by the chairman or vice chairman of the board of
directors (if any), or the president or any vice president, and by the secretary
or an assistant secretary or the treasurer or an assistant treasurer. All
certificates shall be consecutively numbered, and the names of the owners, the
number of shares and the date of issue shall be entered on the books of the
Corporation. Each certificate representing shares shall state upon its face:
(a) that the Corporation is organized under the laws of the State
of Colorado;
(b) the name of the person to whom the shares are issued;
(c) the number and class of the shares and the designation of the
series, if any, that the certificate represents;
(d) the par value, if any, of each share represented by the
certificate;
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(e) if the Corporation is then authorized to issue different
classes of shares or different series within a class, on the front or the back,
(i) a summary of the designations, preferences, limitations, and relative rights
applicable to each class, the variations in preferences, limitations, and rights
determined for each series, and the authority of the board of directors to
determine variations for future classes or series; or (ii) a conspicuous
statement that the Corporation will furnish to the shareholder, on request in
writing and without charge, information concerning the designations,
preferences, limitations, and relative rights applicable to each class, the
variations in preferences, limitations, and rights determined for each series,
and the authority of the board of directors to determine variations for future
classes or series; and
(f) any restrictions imposed by the Corporation upon the transfer
of the shares represented by the certificate.
7.2 FACSIMILE SIGNATURES. Where a certificate is signed (a) by a
transfer agent other than the Corporation or its employee, or (b) by a registrar
other than the Corporation or its employee, any or all of the officers'
signatures on the certificate required by Section 7.1 may be facsimile. If any
officer, transfer agent or registrar who has signed, or whose facsimile
signature or signatures have been placed upon, any certificate, shall cease to
be such officer, transfer agent or registrar, whether because of death,
resignation, or otherwise, before the certificate is issued by the Corporation,
it may nevertheless be issued by the Corporation with the same effect as if he
or she were such officer, transfer agent or registrar at the date of issue.
7.3 TRANSFERS OF SHARES. Transfers of shares shall be made on the books
of the Corporation only upon presentation of the certificate or certificates
representing such shares properly endorsed by the person or persons appearing
upon the face of such certificate to be the owner, or accompanied by a proper
transfer or assignment separate from the certificate, except as may otherwise be
expressly provided by the statutes of the State of Colorado or by order of a
court of competent jurisdiction. The officers or transfer agents of the
Corporation may, in their discretion, require a signature guaranty before making
any transfer. Except to the extent the Corporation otherwise provides pursuant
to Section 7.4 and except for the assertion of dissenters' rights to the extent
provided in Article 113 of the Colorado Business Corporation Act, the
Corporation shall be entitled to treat the person in whose name any shares are
registered on its books as the owner of those shares for all purposes and shall
not be bound to recognize any equitable or other claim or interest in the shares
on the part of any other person, whether or not the Corporation shall have
notice of such claim or interest.
7.4 SHARES HELD FOR ACCOUNT OF ANOTHER. The board of directors may
adopt by resolution a procedure whereby a shareholder of the Corporation may
certify in writing to the Corporation that all or a portion of the shares
registered in the name of such shareholder are held for the account of a
specified person or persons. The resolution shall set forth:
(a) the classification of shareholders who may certify;
(b) the purpose or purposes for which the certification may be
made;
(c) the form of certification and the information to be contained
therein;
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(d) if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or the
closing of the stock transfer books within which the certification must be
received by the Corporation; and
(e) such other provisions with respect to the procedure as are
deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the holders of record of the number of shares specified in
place of the shareholder making the certification.
ARTICLE VIII - MISCELLANEOUS
8.1 CORPORATE SEAL. The board of directors may adopt a seal, circular
in form and bearing the name of the Corporation and the words "SEAL" and
"COLORADO," which, when adopted, shall constitute the seal of the Corporation.
The seal may be used by causing it or a facsimile of it to be impressed,
affixed, manually reproduced or rubber stamped with indelible ink.
8.2 FISCAL YEAR. The board of directors may, by resolution, adopt a
fiscal year for the Corporation.
8.3 RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder
writings consenting to an action, and other documents or writings shall be
deemed to have been received by the Corporation when they are received:
(a) at the registered office of the Corporation in the State of
Colorado;
(b) at the principal office of the Corporation (as that office is
designated in the most recent document filed by the Corporation with the
Secretary of State for the State of Colorado designating a principal office)
addressed to the attention of the secretary of the Corporation;
(c) by the secretary of the Corporation wherever the secretary may
be found; or
(d) by any other person authorized from time to time by the board
of directors, the president or the secretary to receive such writings, wherever
such person is found.
8.4 AMENDMENT OF BYLAWS. These Bylaws may at any time and from time to
time be amended, supplemented or repealed by the board of directors.
* * * * *
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The undersigned, as the Secretary of the Corporation, hereby certifies
that the foregoing Bylaws are the Bylaws of the Corporation in effect on
December 30, 1999.
By: /s/ Thomas Tennessen
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Thomas Tennessen, Secretary
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