BYLAWS
OF
SNAKE RIVER PROPERTIES, INC.
(A Colorado Corporation)
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TABLE OF CONTENTS
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ARTICLE PAGE
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PRINCIPAL EXECUTIVE OFFICE 1
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OTHER OFFICES 1
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MEETINGS OF SHAREHOLDERS 1
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PLACE OF MEETINGS 1
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ANNUAL MEETING 1
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SPECIAL MEETINGS 2
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NOTICE OF SHAREHOLDERS' MEETINGS 2
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MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE 4
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QUORUM 4
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ADJOURNED MEETING AND NOTICE THEREOF 4
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VOTING 5
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VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS 6
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ACTION WITHOUT A MEETING 6
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PROXIES 7
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INSPECTORS OF ELECTION 8
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DIRECTORS 8
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POWERS 8
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NUMBER AND QUALIFICATION OF DIRECTORS 9
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ELECTION AND TERM OF OFFICE 10
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VACANCIES 10
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PLACE OF MEETING 11
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ORGANIZATION MEETING 11
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OTHER REGULAR MEETINGS 11
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SPECIAL MEETINGS 11
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ACTION WITHOUT MEETING 12
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ACTION AT A MEETING: QUORUM AND REQUIRED VOTE 12
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VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS 12
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ADJOURNMENT 12
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FEES AND COMPENSATION 13
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COMMITTEES OF DIRECTORS 13
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INTERESTED DIRECTORS 14
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OFFICERS 15
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ELECTION 15
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SUBORDINATE OFFICERS 15
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REMOVAL 15
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RESIGNATION 16
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VACANCIES 16
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CHAIRMAN OF THE BOARD 16
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PRESIDENT 16
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VICE PRESIDENTS 16
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SECRETARY 17
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CHIEF FINANCIAL OFFICER 17
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INDEMNIFICATION 18
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DEFINITIONS 18
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ACTIONS GENERALLY -- STANDARD OF CONDUCT 18
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ACTIONS BY OR IN THE RIGHT OF THE CORPORATION -- STANDARD OF CONDUCT 18
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SUCCESSFUL DEFENSE ON THE MERITS -- INDEMNIFICATION FOR EXPENSES 19
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DETERMINING SATISFACTION OF STANDARD OF CONDUCT 19
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ADVANCEMENT OF EXPENSES 20
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NONEXCLUSIVE RIGHT TO INDEMNIFICATION 20
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CONFLICT WITH ARTICLES, BYLAWS OR CONDITION OF SETTLEMENT 20
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POWER TO MAINTAIN INSURANCE 20
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FIDUCIARY OF EMPLOYEE BENEFIT PLAN 21
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RECORDS AND REPORTS 21
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MAINTENANCE OF BOOKS AND RECORDS OF ACCOUNT, MINUTES OF
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MEETINGS AND SHAREHOLDER RECORD 21
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INSPECTION OF SHAREHOLDERS 21
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MAINTENANCE AND INSPECTION OF BYLAWS 22
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INSPECTION BY DIRECTORS 23
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ANNUAL AND OTHER REPORTS 23
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FINANCIAL STATEMENTS 23
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ANNUAL STATEMENT OF GENERAL INFORMATION 24
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MISCELLANEOUS 24
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RECORD DATE 24
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CHECKS, DRAFTS, AND OTHER INSTRUMENTS 25
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EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS 26
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CERTIFICATE FOR SHARES 26
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REPRESENTATION OF SHARES OF OTHER CORPORATIONS 27
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REGISTRARS AND TRANSFER AGENTS 27
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S CORPORATION ELECTION 27
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FISCAL YEAR 28
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CONSTRUCTION AND DEFINITIONS 28
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AMENDMENTS 29
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POWER OF THE SHAREHOLDERS 29
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POWER OF DIRECTORS 29
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CERTIFICATE OF SECRETARY 30
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BYLAWS OF
SNAKE RIVER PROPERTIES, INC.
(A Colorado Corporation)
ARTICLE 1
OFFICES
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1.1 PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the
Corporation is hereby fixed at 28577 Caminito Pasadero, Suite 420, San Diego,
California 92128. The board of directors is hereby granted full power and
authority to change the principal executive office to any location within or
outside the State of Colorado.
1.2 REGISTERED OFFICES. The registered office of the corporation
required by the Colorado Business Corporation Act Section 7-105-101 to be
maintained in Colorado may be, but need not be, identical with the principal
office, and the address of the registered office may be changed from time to
time by the board of directors. The Corporation additionally may have other
business offices at such other places, both within and outside the State of
Colorado as the board of directors from time to time may determine or the
business of the Corporation may reasonably require.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
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2.1 PLACE OF MEETINGS. Meetings of shareholders shall be held at the
principal executive office of the Corporation, or at such other place within or
outside the State of Colorado which may be designated either by the board of
directors or by the written consent of all persons entitled to vote thereat and
not present at the meeting, given either before or after the meeting and filed
with the secretary of the Corporation.
2.2 ANNUAL MEETING. The annual meeting of shareholders shall be held
on such date and at such time during the month of August in each year as may be
fixed from year to year by the board of directors. At such meeting, directors
shall be elected, reports of the affairs of the Corporation shall be considered,
and any other business within the powers of the shareholders may be transacted.
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2.3 SPECIAL MEETINGS. Special meetings of the shareholders, for the
purpose of taking any action permitted by the shareholders under the Colorado
Business Corporation Law and the articles of incorporation of the Corporation,
may be called at any time by the board of directors, the chairman of the board,
the president or by written demand, stating the purpose or purposes for which it
is to be held, signed and dated by the holders of shares entitled to cast not
less than 10 percent of the votes entitled to be cast at the meeting. Upon
request in writing that a special meeting of shareholders be called for any
proper purpose, directed to the chairman of the board, president, vice president
or secretary by any person (other than the board) entitled to call a special
meeting of shareholders, the officer forthwith shall cause notice to be given to
shareholders entitled to vote that a meeting will be held at a time requested by
the person or persons calling the meeting, not less than 35 nor more than 60
days after receipt of the request. Such notice shall be in accordance with the
provisions of Sections 2.4 and 2.5 of this Article 2. If such notice is not
given within 20 days after receipt of the request, the person or persons
requesting the meeting may give the notice. Only business within the purpose or
purposes described in the notice of the meeting required by Colorado Business
Corporation Act section 7-107-105(3) may be conducted at a special shareholders'
meeting.
2.4 NOTICE OF SHAREHOLDERS' MEETINGS. Whenever shareholders are
required or permitted to take action at a meeting, a written notice of the
meeting shall be given not less than 10 (or, if sent by third-class mail, or, if
the number of shares is to be increased, 30) nor more than 60 days before the
date of the meeting to each Shareholder entitled to vote thereat (unless
required otherwise by statute). The notice shall state the place, date and hour
of the meeting and (a) in the case of a special meeting, the general nature of
the business to be transacted, and no other business may be transacted; or (b)
in the case of the annual meeting, those matters which the board of directors,
at the time of the mailing of the notice, intends to present for action by the
shareholders. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by the board, if any, for election.
If action is proposed to be taken at any meeting for approval of (i)
a contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 7-108-501 of the Colorado Business Corporation
Act; (ii) an amendment of the articles of incorporation, pursuant to Section
7-110-103(4) or 7-110-107(3) of that Law; (iii) a merger or share exchange,
pursuant to Section 7-111-102 of that Law; or (iv) a voluntary dissolution of
the Corporation, pursuant to Section 7-114-102(4) of that Law, the notice shall
also state the general nature of that proposal.
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2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written notice of a
shareholders' meeting or any report shall be given either personally or by
first-class mail or telegraphic or other means of written communication, charges
prepaid, addressed to the shareholder at the address of such shareholder
appearing on the books of the Corporation or given by the shareholder to the
Corporation for the purpose of notice. If no such address appears on the
Corporation's books or is given, notice shall be deemed to have been given if
sent to that shareholder by first-class mail or telegraphic or other means of
written communication to the Corporation's principal executive office, or if
published at least once in a newspaper of general circulation in the county in
which the principal executive office is located. The notice or report shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by telegram or other means of written communication. An
affidavit of the mailing or other means of giving any notice or report in
accordance with this Section 2.5 shall be executed by the secretary, assistant
secretary or any transfer agent of the Corporation giving the notice, and shall
be filed and maintained in the minutes book of the Corporation. Such affidavit
shall be PRIMA FACIE evidence of the giving of the notice or report.
If any notice or report addressed to a shareholder at the address of
such shareholder appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available for the shareholder
upon written demand of the shareholder at the principal executive office of the
Corporation for a period of one year from the date of the giving of the notice
or report to all other shareholders.
2.6 QUORUM. The presence of a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum for the
transaction of business at a meeting of the shareholders. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
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2.7 ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of a majority of the shares, represented either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at such meeting, except as provided in Section 2.6 above.
When a shareholders' meeting, either annual or special, is adjourned
to another time or place, unless otherwise set forth herein or provided in the
Colorado Business Corporation Act, notice of the adjourned meeting need not be
given if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the reconvened meeting, the Corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than 120 days or if, after adjournment, a new record
date is fixed for the reconvened meeting, a notice of the reconvened meeting
shall be given to each shareholder of record entitled to vote at the meeting.
2.8 VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section
7.1.1 below, subject to the provisions of Sections 7-107-202 and 7-107-204,
inclusive, of the Colorado Business Corporation Act (relating to voting of
shares held by a fiduciary, in the name of a corporation, or in joint
ownership). Except as otherwise set forth in the articles of incorporation of
the Corporation or in Section 7-108-104 of the Colorado Business Corporation Act
(relating to the voting of shares at any election of directors), each
outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote of shareholders. Such vote may be voice vote or by
ballot; PROVIDED, HOWEVER, that all elections for directors must be by ballot
upon demand made by a shareholder at any election and before the voting begins.
Any holder of shares entitled to vote on any matter may vote part of the shares
in favor of the proposal and refrain from voting the remaining shares or vote
them against the proposal, other than elections to office, but, if the
shareholder fails to specify the number of shares such shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares such shareholder is entitled to vote. Subject
to the provisions of Section 2.6 above, if a quorum is present, except with
respect to election of directors, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on any matter shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the Colorado Business Corporation Act or the articles of
incorporation. Subject to the requirements of the next sentence, every
shareholder entitled to vote at any election for directors may cumulate such
shareholder's votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which such
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shareholder's shares are entitled, or to distribute such shareholder's votes on
the same principle among as many candidates as the shareholder thinks fit. No
shareholder shall be entitled to cumulative votes unless the name of the
candidate or candidates for whom such votes would be cast has been placed in
nomination prior to the voting and any shareholder has given notice at the
meeting, prior to the voting, of the shareholders' intention to cumulate the
shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination. In any
election of directors, the candidates receiving the highest number of
affirmative votes of the shares entitled to be voted for them, up to the number
of directors to be elected by such shares, shall be elected.
2.9 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum is present either
in person or by proxy, and if, either before or after the meeting, each of the
persons entitled to vote, not present in person or by proxy, signs a written
waiver of notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Attendance
of a person at a meeting shall constitute a waiver of notice and presence at
such meeting, except when the person objects, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is not a waiver of any right
to object to the consideration of matters required by the Colorado Business
Corporation Act to be included in the notice but not so included, if such
objection is expressly made at the meeting.
2.10 ACTION WITHOUT A MEETING. Except with respect to the election of
Directors as hereinafter provided or as otherwise provided in the articles of
incorporation, any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by all of the
shareholders entitled to vote thereon. Unless the consents of all shareholders
entitled to vote have been solicited in writing, notices shall be given in the
manner as provided in Section 2.5 of Article 2 of these bylaws as follows:
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2.10.1 At least ten (10) days before consummation of the
action authorized by shareholder approval, notice shall be given of shareholder
approval of (i) a contract or other transaction with an interested Director,
(ii) indemnification of an agent of the Corporation, (iii) a merger, exchange or
sale of assets, or reorganization as defined in Article 111 of the Colorado
Business Corporations Act, or (iv) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, if any; and
2.10.2 Promptly with respect to any other corporate action
approved by shareholders without a meeting by less than unanimous written
consent, to those shareholders entitled to vote who have not consented in
writing. Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or personal representative of the
shareholder or their respective proxyholders, may revoke the consent by a
writing received by the Corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the Corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the Corporation.
Notwithstanding anything to the contrary set forth herein, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors; PROVIDED that, in the event a
vacancy on the board of directors exists, other than a vacancy created by
removal, and has not been filled by the directors, a director may be elected at
any time without prior notice by the written consent of a majority of the
outstanding shares entitled to vote for the election of directors.
2.11 PROXIES. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. Any proxy
purporting to be executed in accordance with the provisions of this Section 2.11
shall be presumptively valid. No proxy shall be valid after the expiration of
eleven months from the date thereof unless otherwise provided in the proxy.
Every proxy shall continue in full force and effect until revoked by the person
executing it prior to the vote pursuant thereto, except as otherwise provided in
Section 7-107-203 of the Colorado Business Corporation Act. Such revocation may
be effected by a writing delivered to the Corporation stating that the proxy is
revoked, or by a subsequent proxy executed by the person executing the prior
proxy and presented to the meeting, or as to any meeting by attendance at such
meeting and voting in person by the person executing the proxy. The dates
contained on the forms of proxy presumptively determine the order of execution,
regardless of the postmarked dates on the envelopes in which they are mailed.
The revocability of a proxy which states on its face that it is irrevocable
shall be governed by the provisions of Sections 7-107-203(7) and 7-107-203(8) of
the Colorado Business Corporation Act.
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2.12 INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the board of directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election are not so appointed, or if any persons so
appointed fail to appear or refuse to act, the chairman of any such meeting of
shareholders may, and on the request of any shareholder or a shareholder's proxy
shall, appoint inspectors of election (or persons to replace those who so fail
or refuse) at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more shareholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed.
The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum and the authenticity, validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result, and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
If there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is PRIMA FACIE
evidence of the facts stated therein.
ARTICLE 3
DIRECTORS
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3.1 POWERS. Subject to limitations of the articles of incorporation
and of the Colorado Business Corporation Act relating to action required to be
approved by the shareholders, or by the outstanding shares, or by a less than
majority vote of a class or series of preferred shares, and subject to the
duties of directors as prescribed by the bylaws, the business and affairs of the
Corporation shall be managed by, and all corporate powers shall be exercised by
or under the direction of, the board of directors. The board of directors may
delegate the management of day-to-day operation of the business of the
Corporation to a management company or other person provided that the business
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and affairs of the Corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the board. Without prejudice to
such general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
3.1.1 To select and remove all the officers, agents and
employees of the Corporation, prescribe such powers and duties for them as may
not be inconsistent with law, with the articles of incorporation or the bylaws,
fix their compensation and require from them security for faithful service.
3.1.2 To conduct, manage and control the affairs and business
of the Corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the articles of incorporation or the bylaws, as
they may deem best.
3.1.3 To change the principal executive office and principal
office for the transaction of the business of the Corporation from one location
to another as provided in Article 1, Section 1.1, hereof; to fix and locate from
time to time one or more subsidiary offices of the Corporation within or without
the State of Colorado, as provided in Article 1, Section 1.2, hereof; to
designate any place within or without the State of Colorado for the holding of
any shareholders' meeting or meetings; and to adopt, make and use a corporate
seal, and to prescribe the forms of certificates of stock, and to alter the form
of such seal and of such certificates from time to time, as in their judgment
they may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
3.1.4 To authorize the issue of shares of stock of the
Corporation from time to time, upon such terms and for such consideration as may
be lawful.
3.1.5 To borrow money and incur indebtedness for the purposes
of the Corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
3.1.6 To designate an executive and other committees in
accordance with Section 3.14 of this Article 3.
3.2 NUMBER AND QUALIFICATION OF DIRECTORS. The number of directors of
the Corporation shall not be less than one (1) nor more than nine (9) until
changed by amendment of the articles of incorporation or by a by law amending
this Section 3.2, duly adopted by a majority of the outstanding shares entitled
to vote; PROVIDED that a proposal to reduce the authorized number of directors
to a number less than three cannot be adopted if the votes cast against its
adoption at a meeting, or the shares not consenting in the case of action by
written consent, are equal to more than 16-2/3 percent of the outstanding shares
entitled to vote.
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3.3 ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of shareholders; PROVIDED that, if any such annual meeting
is not held or the directors are not elected thereat, the directors may be
elected at any special meeting of shareholders held for that purpose. All
directors shall hold office until the expiration of the term for which elected
and until their respective successors are elected and qualified, subject to the
Colorado Business Corporation Act and the provisions of these bylaws with
respect to removal of directors and vacancies on the board.
3.4 VACANCIES. A vacancy in the board of directors shall be deemed to
exist in case of the death, resignation or removal of any director, if a
director has been declared of unsound mind by order of court or convicted of a
felony, if the authorized number of directors is increased, or if the
shareholders fail, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting. Unless otherwise provided in the
articles of incorporation or herein, except for a vacancy created by the removal
of a director, vacancies on the board may be filled by approval of a majority of
the directors present at a meeting duly held at which a quorum is present or, if
the number of directors then in office is less than a quorum, by a majority of
the directors then in office, or by a sole remaining director. A vacancy in the
board of directors created by the removal of a director by the vote or written
consent of the shareholders or by court order may only be filled by the vote of
a majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or by the written consent of the holders of a
majority of the outstanding shares. Each director so elected shall hold office
until his successor is elected at an annual or a special meeting of the
shareholders.
The shareholders may elect a director at any time to fill any vacancy
or vacancies not filled by the directors. Any such election by written consent
shall require the consent of a majority of the outstanding shares entitled to
vote.
Any director may resign effective upon giving written notice to the
chairman of the board, the president, the secretary or the board of directors of
the Corporation, unless the notice specifies a later time for the effectiveness
of such resignation. If the resignation is effective at a future time, a
successor may be elected to take office when the resignation becomes effective.
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No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
3.5 PLACE OF MEETING. All meetings of the board of directors shall be
held at any place within or without the State of California which has been
designated in the notice of the meeting or, if not stated in the notice or there
is no notice, designated from time to time by resolution of the board. In the
absence of such designation, meetings shall be held at the principal executive
office of the Corporation.
3.6 ORGANIZATION MEETING. Immediately following each annual meeting
of shareholders, the board of directors shall hold a regular meeting at the
place of such annual meeting or at such other place as shall be fixed by the
board of directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
3.7 OTHER REGULAR MEETINGS. Other regular meetings of the board of
directors shall be held without call on such dates and at such times as may be
fixed from time to time by the board; PROVIDED, HOWEVER, that should the day of
the meeting fall upon a legal holiday, then the meeting shall be held at the
same time on the next day thereafter ensuing which is a full business day.
Notice of all such regular meetings of the board of directors is hereby
dispensed with.
3.8 SPECIAL MEETINGS. Special meetings of the board of directors for
any purpose or purposes may be called at any time by the chairman of the board,
the president, any vice president, the secretary or by any two directors.
Special meetings of the board shall be held upon four days' notice by
mail or 48 hours' notice delivered personally or by telephone or telegraph.
Written notice of the time and place of special meetings shall be delivered
personally to each director or communicated to each director by telephone,
telegraph or mail, charges prepaid, addressed to him at his address as it is
shown upon the records of the Corporation or, if it is not so shown on such
records or is not readily ascertainable, at the place at which the meetings of
the directors are regularly held. Any such notice shall state the date, place
and hour of the special meeting, but need not specify the purpose thereof.
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3.9 ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the board may be taken without a meeting, if all members of the board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
3.10 ACTION AT A MEETING: QUORUM AND REQUIRED VOTE. A majority of the
authorized number of directors constitutes a quorum of the board for the
transaction of business, except as hereinafter provided. Every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present is the act of the board of directors, unless a greater
number, or the same number after disqualifying one or more directors from
voting, is required by law, by the articles of incorporation, or by these
bylaws. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting. Members of the board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
as permitted in the preceding sentence constitutes presence in person at such
meeting.
3.11 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of the board of directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the directors not present or who, though present, has
prior to the meeting or at its commencement protested the lack of proper notice
to such director, signs a written waiver of notice or a consent to holding such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
3.12 ADJOURNMENT. A majority of the directors present at any meeting,
whether or not a quorum is present, may adjourn the meeting to another time and
place. If any meeting is reconvened for more than 24 hours, notice of any
adjournment to another time or place shall be given prior to the time of the
reconvened meeting to the directors who were not present at the time of
adjournment. Otherwise, notice of the time and place of holding a reconvened
meeting need not be given to absent directors if the time and place is fixed at
the meeting adjourned.
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3.13 FEES AND COMPENSATION. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by resolution of the board. This
Section 3.13 shall not be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent, employee or otherwise,
and receiving compensation for these services.
3.14 COMMITTEES OF DIRECTORS.
3.14.1 FORMATION AND POWERS OF COMMITTEES. The board of
directors may, by resolution adopted by a majority of the authorized number of
directors, designate an executive and other committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. The appointment of
members or alternate members of any committee requires the vote of a majority of
the authorized number of directors. Any such committee, to the extent provided
in the resolution of the board, shall have all the authority of the board,
except with respect to:
a. The approval of any action which, under the
Colorado Business Corporation Act, also requires shareholders' approval or
approval of the outstanding shares;
b. The filling of vacancies on the board of directors
or in any committee;
c. The fixing of compensation of the directors for
serving on the board or on any committee;
d. The amendment or repeal of bylaws or the adoption
of new bylaws;
e. The amendment or repeal of any resolution of the
board of directors which by its express terms is not so amendable or repealable;
f. A distribution to the shareholders of the
Corporation, except at a rate, in a periodic amount or within a price range
determined by the board of directors; or
g. The appointment of other committees of the board
of directors or the members thereof.
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3.14.2 MEETINGS AND ACTION OF COMMITTEES. Meetings and action
of committees shall be governed by, and held and taken in accordance with, the
provisions of this Article 3, Sections 3.5 (place of meetings), 3.7 (regular
meetings), 3.8 (special meetings), 3.9 (action without meeting), 3.10 (action at
meeting), 3.11 (validation of defectively called or noticed meetings), and 3.12
(adjournment), with such changes in the context of these bylaws as are necessary
to substitute the committee and its members for the board of directors and its
members, except that:
a. Written notice of the time and place of special
meetings of any committee shall be delivered personally to each committee member
or communicated to each committee member by telephone or telegraph at least 24
hours prior to the time of the holding of the meeting, such telegraphing or
delivery, personally or by telephone; and
b. Notice of special meetings of any committee also
shall be given to all alternate committee members, who shall have the right to
attend all meetings of the committee.
The board of directors may adopt rules for the governance of any
committee not inconsistent with the provisions of these bylaws.
3.15 INTERESTED DIRECTORS. No contract or other transaction between
the Corporation and one or more of its directors, or between the Corporation and
any other corporation, firm or association in which one or more of its directors
has a financial interest, is void or voidable because such director or directors
or such other corporation, firm or association are parties or because the
director or directors are present at the meeting of the board or a committee
thereof, which authorizes, approves or ratifies the contract or transaction if
(a) the material facts as to the transaction and as to such director's interest
are fully disclosed or known to the shareholders, and such contract or
transaction is approved or ratified by the affirmative vote of a majority of the
shares represented and voting at a duly held meeting of shareholders at which a
quorum is present (which shares voting affirmatively also constitute at least a
majority of the required quorum) or by the written consent of shareholders, in
good faith, with the shares owned by the interested director or directors not
being entitled to vote thereon; or (b) the material facts as to the transaction
and as to such director's interest are fully disclosed or known to the board or
committee, and the board or committee authorizes, approves or ratifies the
contract or transaction in good faith by a vote sufficient without counting the
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vote of the interested director or directors, and the contract or transaction is
just and reasonable as to the Corporation at the time it is authorized, approved
or ratified; or (c) as to contracts or transactions not approved as provided in
clauses (a) or (b) above, the contract or transaction was just and reasonable as
to the Corporation at the time it was authorized, approved or ratified. A mere
common directorship does not constitute a material financial interest within the
meaning of this Section 3.15. A director is not interested within the meaning of
this Section 3.15 in a resolution fixing the compensation of another director as
a director, officer or employee of the Corporation, notwithstanding that the
first director also is receiving compensation from the Corporation. Interested
or common directors may be counted in determining the presence of a quorum at a
meeting of the board or a committee thereof which authorizes, approves or
ratifies a contract or transaction.
ARTICLE 4
OFFICERS
--------
4.1 OFFICERS. The officers of the Corporation shall be a president, a
secretary and a chief financial officer. The Corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 4.3 of this Article 4. Any number of offices may be held by the same
person.
4.2 ELECTION. The officers of the Corporation, except such officers
as may be appointed in accordance with the provisions of Section 4.3 or Section
4.6 of this Article 4, shall be chosen annually by the board and serve at the
pleasure of the board, subject to the rights, if any, of an officer under any
contract of employment. Each shall hold his office until he shall resign or
shall be removed or otherwise disqualified to serve, or his successor shall be
duly elected and qualified.
4.3 SUBORDINATE OFFICERS. The board of directors may appoint, and may
empower the president to appoint, such other officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the bylaws or as the
board of directors may from time to time determine.
4.4 REMOVAL. Any officer may be removed, with or without cause or
notice, by the board of directors, at any regular or special meeting thereof,
or, except in case of an officer chosen by the board of directors, by any
officer upon whom such power of removal may be conferred by the board of
directors (subject, in each case, to the rights, if any, of an officer under any
contract of employment).
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4.5 RESIGNATION. Any officer may resign at any time by giving written
notice to the board of directors or to the president, or to the secretary of the
Corporation, without prejudice to the rights, if any, of the Corporation under
any contract to which such officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
4.6 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in the bylaws for regular appointments to such office.
4.7 CHAIRMAN OF THE BOARD. The board of directors may elect a
chairman who shall preside, if present, at all meetings of the board of
directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the board of directors or prescribed by the
bylaws. If there is no president, the chairman of the board shall in addition be
the general manager and the chief executive officer of the Corporation, and
shall have the powers and duties as set forth in Section 4.8 of this Article.
4.8 PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the board of directors to the chairman of the board, if there be such
an officer, the president shall be the general manager and the chief executive
officer of the Corporation and shall, subject to the control of the board of
directors, have general supervision, direction and control of the business and
officers of the Corporation. He shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board, or if there is
none, at all meetings of the board of directors. He shall be EX OFFICIO a member
of all the standing committees, including the executive committee, if any, and
shall have the general powers and duties of management usually vested in the
office of president of a corporation, and shall have such other powers and
duties as may be prescribed by the board of directors or the bylaws.
4.9 VICE PRESIDENTS. In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the board of
directors or, if not ranked, the vice president designated by the board of
directors, shall perform all the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors or the bylaws.
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4.10 SECRETARY. The secretary shall record or cause to be recorded,
and shall keep or cause to be kept, at the principal executive office and such
other place as the board of directors may order, a book of minutes of actions
taken at all meetings of directors and shareholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the notice
thereof given, the names of those present at directors' meetings or committee
meetings, the number of shares present or represented at shareholders' meetings,
and the proceedings thereof. The secretary shall keep, or cause to be kept, at
the principal executive office or at the office of the Corporation's transfer
agent, a share register or a duplicate share register, showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same, and the number and date
of cancellation of every certificate surrendered for cancellation. The secretary
shall give, or cause to be given, notice of all the meetings of the shareholders
and of the board of directors required by the bylaws or by law to be given, and
he shall keep the seal of the Corporation in safe custody, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or the bylaws.
4.11 CHIEF FINANCIAL OFFICER. The chief financial officer (who also
may be called the treasurer) shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the
name and to the credit of the Corporation with such depositories as may be
designated by the board of directors. He shall disburse the funds of the
Corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the
Corporation, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or the bylaws.
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ARTICLE 5
INDEMNIFICATION
---------------
5.1 DEFINITIONS. For purposes of this Article 5, "agent" means any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another domestic or foreign corporation, partnership, joint
venture, trust or other enterprise, or was a director, officer, employee or
agent of a domestic or foreign corporation which was a predecessor corporation
of the Corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes, without limitation, attorneys' fees and any other expenses
of establishing a right to indemnification under Section 5.4 or 5.5.
5.2 ACTIONS GENERALLY -- STANDARD OF CONDUCT. The Corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
Corporation to procure a judgment in its favor) by reason of the fact that such
person is or was an agent of the Corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
Corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the Corporation, or that the person had
reasonable cause to believe that the person's conduct was unlawful.
5.3 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION -- STANDARD OF
CONDUCT. The Corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of the
Corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action, if such person acted
in good faith and in a manner such person believed to be in the best interests
of the Corporation and its shareholders.
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No indemnification shall be made under this Section 5.3 for any of
the following:
5.3.1 In respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation in the
performance of such person's duty to the Corporation and its shareholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
expenses, and then only to the extent that the court shall determine.
5.3.2 Of amounts paid in settling or otherwise disposing of a
pending action without court approval.
5.3.3 Of expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval.
5.4 SUCCESSFUL DEFENSE ON THE MERITS -- INDEMNIFICATION FOR EXPENSES.
To the extent that an agent of the Corporation has been successful on the merits
in defense of any proceeding referred to in Sections 5.2 or 5.3 or in defense of
any claim, issue or matter therein, the agent shall be indemnified against
expenses actually and reasonably incurred by the agent in connection therewith.
5.5 DETERMINING SATISFACTION OF STANDARD OF CONDUCT. Except as
provided in Section 5.4, any indemnification under this Article 5 shall be made
by the Corporation only if authorized in the specific case, upon a determination
that indemnification of the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Sections 5.2 or
5.3, by any of the following:
5.5.1 A majority vote of a quorum consisting of directors who
are not parties to such proceeding.
5.5.2 If such a quorum of directors is not obtainable, by
independent counsel in a written opinion.
5.5.3 Approval of the shareholders, with the shares owned by
the person to be indemnified not being entitled to vote thereon.
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5.5.4 The court in which such proceeding is or was pending
upon application made by the Corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
Corporation.
5.6 ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the Corporation prior to the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount, if it shall be determined ultimately that the agent is not
entitled to be indemnified as authorized in this Article 5.
5.7 NONEXCLUSIVE RIGHT TO INDEMNIFICATION. The indemnification
provided by this Article 5 shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise, both as to action
in an official capacity and as to action in another capacity, while holding such
office, to the extent such additional rights to indemnification are authorized
in the articles of incorporation of the Corporation. The rights to indemnity
hereunder shall continue as to a person who has ceased to be a director,
officer, employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of the person. Nothing contained in this Article 5
shall affect any right to indemnification to which persons other than such
directors and officers may be entitled by contract or otherwise.
5.8 CONFLICT WITH ARTICLES, BYLAWS OR CONDITION OF SETTLEMENT. No
indemnification or advance shall be made under this Article 5, except as
provided in Section 5.4 or 5.5, in any circumstance where it appears:
5.8.1 That it would be inconsistent with a provision of the
articles of incorporation, bylaws, a resolution of the shareholders or an
agreement in effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification.
5.8.2 That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
5.9 POWER TO MAINTAIN INSURANCE. The Corporation shall have power to
purchase and maintain insurance on behalf of any agent of the Corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such, whether or not the Corporation
would have the power to indemnify the agent against such liability under the
provisions of this Article 5. The fact that the Corporation owns all or a
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portion of the shares of the company issuing a policy of insurance shall not
render this Section 5.9 inapplicable if either of the following conditions are
satisfied: (a) if authorized in the articles of the Corporation, any policy
issued is limited to the extent provided by Section 7-109-109 of the Colorado
Business Corporation Act; or (b)(i) the company issuing the insurance policy is
organized, licensed and operated in a manner that complies with the insurance
laws and regulations applicable to its jurisdiction of organization, (ii) the
company issuing the policy provides procedures for processing claims that do not
permit that company to be subject to the direct control of the Corporation, and
(iii) the policy issued provides for some manner of risk sharing between the
issuer and purchaser of the policy, on one hand, and some unaffiliated person or
persons, on the other, such as by providing for more than one unaffiliated owner
of the company issuing the policy or by providing that a portion of the coverage
furnished will be obtained from some unaffiliated insurer or reinsurer.
5.10 FIDUCIARY OF EMPLOYEE BENEFIT PLAN. This Article 5 does not
apply to any proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in such person's capacity as such, even
though such person may also be an agent of the Corporation. The Corporation
shall have power to indemnify such a trustee, investment manager or other
fiduciary to the extent permitted by Section 7-109-107 of the Colorado Business
Corporation.
ARTICLE 6
RECORDS AND REPORTS
-------------------
6.1 MAINTENANCE OF BOOKS AND RECORDS OF ACCOUNT, MINUTES OF MEETINGS
AND SHAREHOLDER RECORD. The Corporation shall keep adequate and correct books
and records of account and shall keep minutes of the proceedings of its
shareholders, board and committees of the board, and shall keep at its principal
executive office, or at the office of its transfer agent or registrar, a record
of the names and addresses of all shareholders and the number and class of
shares held by each shareholder. Such minutes shall be kept in written form.
Such other books and records shall be kept either in written form or in any
other form capable of being converted into written form.
6.2 INSPECTION OF SHAREHOLDERS.
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6.2.1 A shareholder or shareholders holding at least 5 percent
in the aggregate of the outstanding voting shares of the Corporation shall have
the absolute right to do either or both of the following: (i) inspect and copy
the record of shareholders' names and addresses and shareholdings during usual
business hours, on five days' prior written demand upon the Corporation, or (ii)
obtain from the transfer agent for the Corporation, upon written demand and upon
the tender of the transfer agent's usual charges for this service, a list of the
names and addresses of shareholders who are entitled to vote for the election of
directors and their shareholdings, as of the most recent record date for which a
list has been compiled or as of a specified date later than the date of demand.
This list shall be made available within five business days after the date the
demand is received, or the specified later date as of which the list is to be
compiled. The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate, at any time
during usual business hours, upon written demand on the Corporation, for a
purpose reasonably related to the holder's interests as a shareholder or holder
of a voting trust certificate. Any inspection and copying under this Section may
be made in person or by an agent or attorney of the shareholder or holder of a
voting trust certificate making the demand.
6.2.2 The accounting books and records, and minutes of
proceedings of the shareholders, the board of directors and committees of the
board shall be kept at the principal executive office of the Corporation, or at
such other place or places as designated by the board of directors. The minutes
shall be kept in written form, and the accounting books and records shall be
kept either in written form or in a form capable of being converted into written
form. The minutes and accounting shall be open to inspection upon the written
demand of any shareholder or as the holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection by a shareholder or holder of a voting trust
certificate may be made in person or by agent or attorney, and the right of
inspection includes the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary of the Corporation.
6.3 MAINTENANCE AND INSPECTION OF BYLAWS. The Corporation shall keep
at its principal executive office, or if its principal executive office is not
in the State of Colorado, at its registered office in Colorado, the original or
a copy of these bylaws as amended to date, which shall be open to inspection by
the shareholders at all reasonable times during office hours. If the principal
executive office of the Corporation is outside the State of Colorado and the
Corporation has no principal business office in this state, the secretary shall,
upon the written request of any shareholder, furnish to such shareholder a copy
of the bylaws as amended to date.
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6.4 INSPECTION BY DIRECTORS. Every director shall have the absolute
right at any reasonable time to inspect all books, records and documents of
every kind and to inspect the physical properties of the Corporation and each of
its subsidiary corporations, domestic or foreign. This inspection by a director
may be made in person or by agent or attorney, and the right of inspection
includes the right to copy and make extracts.
6.5 ANNUAL AND OTHER REPORTS. The board of directors shall cause an
annual report to be sent to the shareholders not later than 120 days after the
close of the fiscal year adopted by the Corporation. This report shall be sent
at least fifteen (15) days before the annual meeting of shareholders to be held
during the next fiscal year and in the manner specified in these by laws for
giving notice to shareholders of the Corporation. The annual report shall
contain a balance sheet as of the end of that fiscal year and an income
statement and statement of changes in financial position for that fiscal year,
accompanied by any report thereon of independent accountants or, if there is no
such report, the certificate of an authorized officer of the Corporation that
the statements were prepared without audit from the books and records of the
Corporation.
6.6 FINANCIAL STATEMENTS. If no annual report for the last fiscal
year has been sent to shareholders, the Corporation shall, upon written request
of any shareholder made more than 120 days after the close of that fiscal year,
deliver or mail to the person making the request, within 30 days after receipt
of the request, a balance sheet as of the end of that fiscal year and an income
statement and statement of changes in financial position for that fiscal year. A
shareholder or shareholders holding at least 5 percent of the outstanding shares
of any class of the Corporation may make a written request to the Corporation
for an income statement of the Corporation for the three-month, six-month or
nine-month period of the current fiscal year ending more than 30 days prior to
the date of the request and a balance sheet of the Corporation as of the end of
the period and, in addition, if no annual report for the last fiscal year has
been sent to shareholders, a balance sheet as of the end of that fiscal year and
an income statement and statement of changes in financial position for that
fiscal year. The statements shall be delivered or mailed to the person making
the request within 30 days after receipt of the request. A copy of the
statements shall be kept on file in the principal office of the Corporation for
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twelve months and shall be exhibited at all reasonable times to any shareholder
demanding an examination of the statements, or a copy shall be mailed to the
shareholder. The quarterly income statements and balance sheets referred to in
this Section 6.6 shall be accompanied by the report thereon, if any, of any
independent accountants engaged by the Corporation or the certificate of an
authorized officer of the Corporation that the financial statements were
prepared without audit from the books and records from the Corporation.
6.7 CORPORATE REPORT TO SECRETARY OF STATE. The Corporation shall
file with the Secretary of State a corporate report that sets forth (a) the
corporate name of the Corporation; (b) the state or country under whose law it
is incorporated; (c) the street address of its registered office and the name of
its registered agent at that office; (d) the street address of its principal
office; and (e) the names and addresses of its directors and principal officers.
The Corporate Reports shall be made on a form delivered by the Secretary of
State, who shall deliver a copy thereof to the Corporation in the second
calendar year succeeding the calendar year in which the Corporation is
incorporated and thereafter every two years. The Corporate Report shall be filed
with the Secretary of State for filing no later than the end of the second
calendar month following the calendar month in which the copy of the Corporate
Report is delivered by the Secretary of State.
ARTICLE 7
MISCELLANEOUS
-------------
7.1 RECORD DATE.
7.1.1 FOR SHAREHOLDER NOTICE, VOTING AND GIVING CONSENTS. For
purposes of determining shareholders entitled to notice of any meeting or to
vote, or entitled to give consent to corporate action without a meeting, the
board of directors may fix, in advance, a record date, which shall not be more
than 60 days nor fewer than 10 days prior to the date of any such meeting, nor
more than 60 days before any such action without a meeting. Only shareholders of
record at the close of business on the record date are entitled to notice and to
vote, or to give consents, as the case may be, notwithstanding any transfer of
any shares on the books of the Corporation after the record date, except as
otherwise provided in the articles of incorporation or in the Colorado Business
Corporation Act. The determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting unless the board fixes a new record date for the adjourned meeting;
PROVIDED that the board shall fix a new record date if the meeting is adjourned
for more than 45 days from the date set forth the original meeting. If the board
of directors does not so fix a record date:
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a. The record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
b. The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting, when
no prior action by the board has been taken, shall be the day on which the first
written consent is given or, when prior action of the board has been taken,
shall be at the close of business on the day on which the board adopts the
resolution relating to that action, or the 60th day before the date of such
other action, whichever is later.
7.1.2 FOR PURPOSES OTHER THAN NOTICE, VOTING AND GIVING
CONSENTS. For purposes of determining the shareholders entitled to receive any
report, to receive payment of any dividend or other distribution or allotment of
any rights, or entitled to exercise any rights in respect of any other lawful
action (other than action by shareholders by written consent taken without a
meeting), the board of directors may fix, in advance, a record date, which shall
not be more than 60 days prior to any such action. Only shareholders of record
at the close of business on the record date are entitled to receive the report,
dividend, distribution, or allotment of rights or to exercise the rights, as the
case may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date so fixed, except as otherwise provided in the
articles of incorporation or in the Colorado Business Corporation Act. If the
board of directors does not so fix a record date, the record date for
determining shareholders for any such purpose shall be at the close of business
on the day on which the board adopts the applicable resolution or the 60th day
before the date of that action, whichever is later.
7.2 CHECKS, DRAFTS, AND OTHER INSTRUMENTS. All checks, drafts or
other orders for payment of money, notes or other evidences of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the board of directors.
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7.3 EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, agreement, share certificate, conveyance, or other instrument in
writing, and any assignment or endorsements thereof, executed or entered into
between the Corporation and any other person, when signed by the chairman of the
board, the president or any vice president, and the secretary, any assistant
secretary, the chief financial officer or any assistant treasurer of the
Corporation, shall be valid and binding on the Corporation in the absence of
actual knowledge on the part of the other person that the signing officers had
no authority to execute the same. Any such instruments may be signed by any
other person or persons and in such manner as from time to time shall be
determined by the board and, unless so authorized by the board, no other
officer, agent, or employee shall have any power or authority to bind the
Corporation by any contract or engagement, or to pledge its credit or to render
it liable for any purpose or amount.
7.4 CERTIFICATE FOR SHARES. Every holder of shares in the Corporation
shall be entitled to have a certificate signed in the name of the Corporation by
the chairman or vice chairman of the board or the president or a vice president,
and by the chief financial officer or an assistant treasurer or the secretary or
any assistant secretary, certifying the number of shares and the class or series
of shares owned by the shareholder. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of
issue.
Any such certificate shall also contain such legend or other
statement as may be required by the Colorado Business Corporation Act, the
Corporate Securities Law of 1968, as amended, the federal securities laws, and
any agreement between the Corporation and the issuee thereof.
Certificates for shares may be issued prior to full payment under
such restrictions and for such purposes as the board of directors or the bylaws
may provide; PROVIDED, HOWEVER, that any such certificate so issued prior to
full payment shall state on the face thereof the amount remaining unpaid and the
terms of payment thereof.
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No new certificates for shares shall be issued in lieu of an old
certificate unless the latter is surrendered and cancelled at the same time;
PROVIDED, HOWEVER, that the board of directors may authorize the issuance of a
new share certificate or a new certificate for any other security in the place
of any certificate theretofore issued by the corporation and alleged to be lost,
stolen or destroyed in the event that (a) the request for the issuance of the
new certificate is made within a reasonable time after the holder of the old
certificate has notice of its loss, destruction or theft and prior to the
receipt of notice by the Corporation that the older certificate has been
acquired by a bona fide purchaser or holder in due course; and (b) the owner of
the old certificate (or the owner's legal representative) gives to the
Corporation an indemnity bond (or other adequate security) sufficient to
indemnify the Corporation against any claim that may be made against it
(including any expense or liability) on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate, and
satisfies any other reasonable requirements imposed by the board. In the event
of the issuance of a new certificate, the rights and liabilities of the
Corporation and the holders of the old and new certificates shall be governed by
the provisions of the Uniform Commercial Code.
7.5 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The president or
any vice president, and the secretary or any assistant secretary of the
Corporation are authorized to vote, represent and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the Corporation. The authority herein
granted to said officers to vote or represent on behalf of the Corporation any
and all shares held by the Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
7.6 REGISTRARS AND TRANSFER AGENTS. The board of directors may
appoint one or more registrars of transfers, which shall be incorporated banks
or trust companies, either domestic or foreign, and one or more transfer agents
or transfer clerks, who shall be appointed at such times and places as the board
of directors shall determine, in its sole discretion.
7.7 S CORPORATION ELECTION. If the Corporation has elected to be
taxed pursuant to the provisions of the Internal Revenue Code pertaining to S
corporations, then the Corporation, any shareholder and any person to whom any
of its shares are transferred shall not do any act or take any course of conduct
which shall have the effect of terminating such election without the prior vote
of at least 66-2/3 percent of the outstanding shares of the Corporation or the
written consent of the persons entitled to vote such shares.
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7.8 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the board of directors, and having been so determined, is subject
to change from time to time as the board of directors shall determine.
7.9 CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the California General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes a corporation as well as a natural person.
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ARTICLE 8
AMENDMENTS
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8.1 POWER OF THE SHAREHOLDERS. Except as otherwise provided by law or
by the articles of incorporation, new bylaws may be adopted or these bylaws may
be amended or repealed by the approval of the outstanding shares entitled to
vote.
8.2 POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section 8.1 of this Article 8 to adopt, amend or repeal bylaws, new
bylaws may be adopted, or these bylaws may be amended or repealed by the
approval of the board of directors; PROVIDED, HOWEVER, that the board of
directors may adopt a bylaw or amendment thereof changing the authorized number
of directors only for the purpose of fixing the exact number of directors within
the limits specified in the articles of incorporation or in Section 3.2 of
Article 3 of these bylaws.
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CERTIFICATE OF SECRETARY
------------------------
I, Marisa Chatfield, do hereby certify as follows:
1. I am the duly elected and acting Secretary of Snake River
Properties, Inc., a Colorado corporation (the "Corporation").
2. The foregoing bylaws, consisting of twenty-seven pages, are the
true and correct Bylaws of the Corporation as adopted by the board of directors
on April 7, 2000.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 7th day
of April, 2000.
/S/ Marisa Chatfield, Secretary
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