EXHIBIT 3.2
BYLAWS OF
WINCO SPIN-OFF CORPORATION
ARTICLE I
Offices
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SECTION 1. PRINCIPAL OFFICE. The principal place of business of
Winco Spin-Off Corporation, a Colorado corporation (the "Corporation"),
shall be 3118 Cummings, Garden City, Kansas 67846.
SECTION 2. OTHER OFFICES. Other offices may be established from
time to time by the Board of Directors at such place or places where the
Corporation is qualified to do business.
ARTICLE II
Capital Stock
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SECTION 1. STOCK CERTIFICATES. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent
with the Articles of Incorporation of the Corporation (the "Articles of
Incorporation") or Colorado law, as shall be approved by the Board of
Directors. Each certificate shall be signed by the Chairman or Vice
Chairman of the Board of Directors or by the President or a Vice President
and also by a Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary and may (but need not) be sealed with the corporate seal of the
Corporation. Any or all of the signatures upon a certificate may be manual
or facsimiles. The certificate may be countersigned by a transfer agent or
registered by a registrar, both of which may be the Corporation itself or
an employee of the Corporation. If any officer who has signed or whose
facsimile signature has been placed upon such certificate has ceased to be
such officer before the certificate is issued, it may be issued by the
Corporation with the same effect as if he were such an officer at the date
of its issue. All certificates shall be consecutively numbered and the
names and address of the persons owning the shares represented thereby,
with the number of such shares and the date of issue, shall be entered on
the Corporation's books. If the Corporation is authorized to issue
different classes of shares or different series within a class, the
certificate shall contain 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 (if any) of the Board of Directors to determine variations for
future classes or series. Alternatively, each certificate may
conspicuously state on its front or back that the Corporation will furnish
to the shareholder the foregoing information on request in writing and
without charge.
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SECTION 2. SHARES WITHOUT CERTIFICATES. The Board of Directors
may by resolution authorize the issuance of any class or series of shares
without certificates. Such authorization shall not affect shares already
represented by certificates until they are surrendered to the Corporation.
Within a reasonable time following the issue or transfer of shares without
certificates, the Corporation shall send the shareholder a written
statement of the information required on stock certificates by the laws of
the State of Colorado. Unless and until the Board of Directors authorizes
otherwise by resolution, all shares of capital stock of the Corporation
shall be represented by certificates.
SECTION 3. TRANSFERS OF SHARES. Except as otherwise provided by
law, shares of the Corporation shall be transferable or assignable on the
books of the Corporation only by the holder thereof, in person or by duly
authorized attorney, upon surrender of the certificate or certificates for
such shares duly endorsed for such transfer (unless the shares were issued
without certificates) or upon compliance with Section 4 of this Article.
SECTION 4. LOST CERTIFICATES. The Corporation shall issue a new
certificate or certificates in place of any outstanding certificate or
certificates alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of shares to be lost, stolen or destroyed; and the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representatives, to advertise the same in such
manner as it shall require and/or give the Corporation a bond in such sum
as it may direct as indemnity or otherwise agree to indemnify, hold
harmless and defend the Corporation against any claim that may be made
against the Corporation, provided that the Corporation shall not be
required to issue a new certificate or certificates if:
(a) The owner fails to notify the Corporation that the old
certificate or certificates have been lost, stolen or destroyed within a
reasonable time after he has notice of it and the Corporation registers a
transfer of such old certificate(s) before receiving such notification, or
(b) The owner does not request a new certificate(s) before the
Corporation has notice that the old certificate(s) has been acquired by a
bona fide purchaser as such term is defined in the Colorado Uniform
Commercial Code - Investment Securities.
Except as provided above in this section or as otherwise required by
Colorado law, no new certificate evidencing shares of stock shall be issued
unless and until the old certificate or certificates in lieu of which the
new certificate is issued has been surrendered for cancellation.
SECTION 5. DIVIDENDS. The Board of Directors may, from time to
time, declare and the Corporation may pay dividends or other distributions
on its shares in cash, property or its own shares; provided that no such
dividend or distribution will be made if (a) after such dividend or
distribution the Corporation will not be able to pay its debts as they
become due in the usual course of business, (b) after such dividend or
distribution, the Corporation's total assets would be
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less than the sum of its total liabilities, plus (unless the Articles of
Incorporation permit otherwise) the amount that would be necessary, if the
Corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of shareholders whose
preferential rights are superior to those receiving the distribution, or
(c) the dividend or distribution would otherwise violate Colorado law.
ARTICLE III
Shareholders and Meetings
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SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders
of the Corporation for the election of Directors and for the transaction of
such other business which may properly come before the meeting shall be
held on the last day of July of each year, if the same is not a legal
holiday, and if a legal holiday, then on the next succeeding business day,
at 10:00 a.m., at the principal office of the Corporation or at such other
place within or without the State of Colorado as the Board of Directors, by
resolution, may direct.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders
may be called by (a) the President, or (b) resolution of the Board of
Directors, or (c) upon the Corporation's receipt of one or more written
demands stating the purpose(s) for which the meeting is to be held, signed
and dated by the holders of not less than one-tenth of all the votes
entitled to be cast on any issue proposed to be considered at the meeting.
Such meetings will be held at the principal office of the Corporation, or
if called by resolution of the Board of Directors, at such other place
within or without the State of Colorado as is stated in the notice thereof.
Said notice shall further specify the purpose for which the meeting is called.
SECTION 3. SHAREHOLDERS ENTITLED TO VOTE. Registered shareholders
only shall be entitled to be treated by the Corporation as holders in fact
of the shares standing in their respective names; and the Corporation shall
not be bound to recognize any equitable or other claim to or interest in
any share on the part of any other person, firm, or Corporation, whether or
not it shall have express or other notice thereof, except as expressly
provided by the laws of the State of Colorado.
SECTION 4. RECORD DATE. The Board of Directors may fix a time in
the future as a record date for the determination of the shareholders
entitled to notice of, and to vote at, any meeting of shareholders (or any
adjournment thereof) or entitled to receive any dividend or distribution,
or any change, conversion or exchange of shares. The record date so fixed
shall be not more than 70 days prior to the date of the meeting or event
for the purposes of which it is fixed. When a record date is so fixed,
only shareholders who are of record on that date are entitled to notice of,
and to vote at, the meeting or to receive the dividend, distribution, or
allotment of rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of any share on the books of the Corporation
after the record date. If no record date is set, the determination of
shareholders shall be made on the first date that a notice for a shareholders'
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meeting is given to a shareholder, the date that the first written consent
of shareholders is received by the Corporation, in the case of shareholder
action by unanimous written consent, or on the date that the Board of
Directors passes a resolution entitling shareholders to receive any
dividend, distribution or allotment of rights. Unless otherwise specified
when a record date is fixed, the determination of shareholders shall be as
of the Corporation's close of business on the record date.
SECTION 5. LIST OF SHAREHOLDERS. After fixing a record date for
a shareholder's meeting, the Secretary or Assistant Secretary will cause to
be prepared a list of the names of all of the Corporation's shareholders
who are entitled to be given notice of the meeting. The list shall be
arranged by voting groups and within each voting group by class or series
of shares, shall be alphabetical within each class or series, and shall
show the address of, and the number of shares of each such class and series
that are held by, each shareholder. 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 meeting in the city where the
meeting will be held. A shareholder or his agent or attorney is entitled
on written notice to inspect and, subject to the requirements set forth
below, to copy the list during regular business hours and during the period
it is available for inspection. In order to copy the list, a shareholder
must satisfy the following requirements: (a) the shareholder has been a
shareholder for at least three months immediately preceding the demand or
is a shareholder of at least five percent (5%) of all the outstanding
shares of any class of the Corporation as of the date the demand is made,
(b) the demand is made in good faith and for a proper purpose, (c) the
shareholder describes with reasonable particularity the purpose and the
records the shareholder desires to inspect, (d) the records are directly
connected with the described purpose, and (e) the shareholder pays a
reasonable charge imposed by the Corporation for copying.
SECTION 6. NOTICE. Written notice of every annual and special
meeting of shareholders stating the date, time and place thereof, shall be
given not less than ten nor more than 60 days prior thereto (except, at
least 30 days' notice shall be given for a meeting called for the purpose
of increasing the authorized capital stock of the Corporation) to each
shareholder of record who is entitled to vote at the meeting (and those
shareholders who are not entitled to vote if required by the Colorado
Business Corporation Act) at his last known address, as the same appears on
the books of the Corporation. The notice of a special meeting shall
include a description of the purpose or purposes for which the meeting is
called, but the 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 exchange, a disposition of substantially all of the property of
the Corporation, a consent by the Corporation to the disposition of
property by another entity, or a dissolution of the Corporation. If a
shareholder shall have furnished a written address to the Secretary of the
Corporation different from that appearing on the books of the Corporation,
then any such notice that is mailed shall be mailed to the shareholder at
such later address. The Secretary or Assistant Secretary shall give or
cause notice to be given by mail, telegraph, telecopy, facsimile, teletype,
electronic mail, private carrier or personal
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delivery. If a notice is mailed first class (including registered or
certified mail), postage prepaid, it shall be deemed effective as to any
shareholder when deposited in the United States Mail, addressed to the
shareholder at his address at it appears in the Corporation's current
record of shareholders, but if three successive notices mailed to the
address of any shareholder as shown on the Corporation's current record of
shareholders are returned as undeliverable, no further notices to such
shareholder shall be necessary until another address for such shareholder
is made known to the Corporation. If a notice is given in any other
manner, it shall be effective on the earliest of: (a) the date received;
(b) five days after mailing; or (c) the date shown on the return receipt,
if mailed by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee.
SECTION 7. VOTING AND QUORUM. Except as may be provided otherwise
in the Articles of Incorporation, (a) every shareholder entitled to vote on
a matter submitted to a vote of the shareholders shall have one vote for
each share of stock (and a corresponding fractional vote for each
fractional share of stock) registered in its name on the record date, (b)
a quorum shall consist of a majority of the votes entitled to be cast at
the meeting, or if any matter to be presented at the meeting is to be voted
on by a separate voting group, a quorum for that matter will consist of a
majority of the votes of the voting group entitled to vote on the matter,
(c) if a quorum exists, action on a matter, other than the election of
Directors, is approved if the votes cast favoring the action exceed the
votes cast opposing the action, except where a greater number of
affirmative votes is required by the Articles of Incorporation or the
Colorado Business Corporation Act or a resolution of the Board of
Directors, and (d) unless the Articles of Incorporation provide for
cumulative voting in an election of Directors, that number of candidates
equaling the number of Directors to be elected, having the highest number
of votes cast in favor of their election, are elected to the Board of
Directors, or if Directors are elected by separate voting groups, that
number of candidates equaling the number of Directors to be elected by that
voting group, having the highest number of votes cast in favor of their
election by the voting group, are elected to the Board of Directors by the
voting group. An amendment to the Articles of Incorporation shall be
required to change any provision of this Section 7, except that the
provisions of clauses (b) and (c) may be amended by the shareholders
pursuant to Article VI, Section 2 of these Bylaws if the shareholders were
given the power to do so under the Articles of Incorporation.
SECTION 8. PROXIES. Every shareholder entitled to vote or execute
written consents shall have the right to do so either in person or by one
or more agents authorized by a written proxy executed by such person or his
duly authorized agent and filed with the Secretary of the Corporation;
provided that no such proxy shall be valid after the expiration of eleven
months from the date of its execution, unless the person executing it
specified therein the length of time for which such proxy is to continue in
force.
SECTION 9. ADJOURNED MEETINGS AND NOTICE THEREOF. Any
shareholders' meeting, annual or special, whether or not a quorum is
present with respect to any voting group, may be adjourned from time to
time by a vote of the shares present if the votes cast in favor of the
adjournment exceeds those voted against the adjournment. Except as
provided below, notice need not be given of the new date, time or place of
the adjourned meeting if the new date, time and
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place is announced at the meeting before adjournment. If a new record date
for the adjourned meeting is fixed (a new record date must be fixed if the
meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting), notice of the adjourned meeting shall be given to
those shareholders entitled to notice 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 as 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 whether or not a quorum exists, it shall be deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of
that meeting unless a new record date is set for the adjourned meeting.
SECTION 10. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at a shareholders' meeting may be taken without a
meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each shareholder entitled to vote
thereon and delivered to the Secretary of the Corporation for inclusion in
the minutes or for filing with the corporate records. Action taken by
consent is effective as of the date the last written consent necessary to
effect the action is received by the Corporation, unless all the written
consents specify a different effective date which may be before or after
the date the written consents are received by the Corporation. Any action
taken by written consent 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 action
taken pursuant to this section may revoke such consent by a writing signed
and dated 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.
SECTION 11. TELEPHONE MEETINGS. Any one or more 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 present in person at the meeting. If notice of the meeting is
given, such notice need not specify that one or more shareholders may
participate in the meeting by means of such communication.
SECTION 12. CHAIRMAN OF MEETING. The President of the Corporation
or such person as is designated by him shall preside at all meetings of
shareholders.
SECTION 13. WAIVER OF NOTICE. 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. A 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 to the effectiveness of the waiver. By
attending a meeting, a shareholder waives any objection to lack of notice
or defective notice of such meeting unless the shareholder, at the
beginning of the meeting, objects to the holding of the meeting or
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the transacting of business at the meeting because of lack of notice or
defective notice. By attending a meeting, a shareholder also waives any
objection to consideration of any particular matter as not being within the
purpose of the meeting notice unless the shareholder objects to
consideration of the matter at the time it is presented.
ARTICLE IV
Directors
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SECTION 1. NUMBER OF DIRECTORS. The Board of Directors of the
Corporation shall consist of at least one member but not more than three
members (the "Directors"). Every Director shall be a natural person at
least 18 years old but who need not be either a shareholder or resident of
the State of Colorado. A Director, other than the initial Director (as
identified in the original Articles of Incorporation), shall be elected at
the annual meeting of shareholders, or any adjournment thereof, and (unless
the Articles of Incorporation provide for staggered terms of Directors)
shall hold office until the next annual meeting of shareholders and until
their successors shall be duly elected and qualified.
SECTION 2. INCREASE OR DECREASE IN NUMBER OF DIRECTORS. The
number of Directors may be increased or decreased from time to time by
amendment to the Bylaws, but no decrease shall have the effect of
shortening the term of any incumbent Director.
SECTION 3. VACANCIES. Any vacancy occurring in the Board of
Directors (including a vacancy created by an increase in the number of
Directors) shall be filled by (a) an action of the Board of Directors at a
meeting at which a quorum is present or, if the remaining Directors are
less than a quorum, by the affirmative vote of a majority of the Directors
then in office (even if less than a quorum), or (b) by an election at an
annual meeting, or at a special meeting of the shareholders called for that
purpose. A Director chosen to fill a vacancy shall hold office until the
next annual meeting of shareholders and until his successor has been
elected and qualified. Notwithstanding any other provision of this
Section, if a vacancy was held by a Director elected by a voting group of
shareholders, then, if one or more of the remaining Directors were elected
by the same voting group, only such Directors are entitled to vote to fill
the vacancy if it is filled by the Directors, and they may do so by the
affirmative vote of the majority of such Directors remaining in office; and
only the holders of shares of that voting group are entitled to fill the
vacancy if it is filled by the shareholders.
SECTION 4. REMOVALS. At any meeting of the shareholders called
for that purpose, all of the Directors, or any number of Directors, may be
removed, with or without cause, by the shareholders if the votes cast in
favor of removal exceed the votes cast against removal; provided, however,
that if the Articles of Incorporation provide for cumulative voting, if
less than all of the Directors are to be removed, no one of the Directors
may be removed if the votes of a sufficient number of shares are cast
against his removal which, if then cumulatively voted at an election of the
entire Board of Directors, or at an election of the class of Directors of
which he is a part,
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would be sufficient to elect him. If a Director is elected by a voting
group of shareholders, only the shareholders of that voting group may
participate in a vote to remove that Director.
SECTION 5. RESIGNATION. Any Director may resign at any time by
mailing or delivering or by transmitting by telecopy, facsimile, telegraph
or cable written notice of his resignation to the President or Secretary of
the Corporation. A resignation of a Director is effective when the notice
is received by the Corporation, unless the notice specifies a later
effective date. Acceptance of the resignation shall not be necessary
unless the notice so provides.
SECTION 6. POWERS. Subject to limitations of the Articles of
Incorporation, of the Bylaws, and of the Colorado Business Corporation Act
as to action which shall be authorized or approved by the shareholders, all
corporate powers shall be exercised by or under the authority of, and the
business and affairs of the Corporation managed under the direction of the
Board of Directors. Without prejudice to such general powers, but subject
to the same limitation, it is hereby expressly declared that the Board of
Directors shall have the following powers, to wit:
(a) 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, the Colorado Business Corporation Act, with the
Articles of Incorporation, or the Bylaws, and fix their compensation.
(b) To conduct, manage and control the affairs and business of
the Corporation, and to make such rules and regulations therefor not
inconsistent with the law, Colorado Business Corporation Act, or with the
Articles of Incorporation, or the Bylaws, as they may deem best.
(c) To change the principal office of the Corporation for the
transaction of the business of the Corporation and to fix and locate, from
time to time, one or more subsidiary offices of the Corporation within or
without the State of Colorado.
(d) To adopt, make and use a corporate seal, and to prescribe
the form of certificates of shares, 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 certificate shall at all times comply
with the provisions of the law.
(e) To authorize the issuance of shares of stock of the
Corporation, from time to time, upon such terms and for such consideration
as may be lawful.
(f) 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 security
therefor.
(g) To declare dividends pursuant to the provisions of the
Colorado Business Corporation Act.
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(h) The greater of a majority of the Board of Directors then in
office or the Directors necessary to approve other action by the Board of
Directors may, by resolution, designate two or more Directors to constitute
an executive committee and one or more other committees each of which to
the extent provided in such resolution shall have and may exercise all of
the authority of the Board of Directors in the management of the
Corporation, except the power to declare dividends or other distributions,
to fill vacancies on the Board of Directors or any committee, to amend the
Articles of Incorporation, to adopt, amend or repeal the Bylaws, to
authorize the issuance or reacquisition of stock (except within limits
authorized by the Board of Directors) and those other powers which may not
be delegated to such committees under the Colorado Business Corporation Act.
(i) Anything hereinabove to the contrary notwithstanding, the
Board of Directors may, except as may otherwise be required by law,
authorize any officer or officers, agent or agents, in the name of and on
behalf of the Corporation, to sign checks, drafts, or other orders for the
payment of money or notes or other evidences of indebtedness, to endorse
for deposit, and/or deposit to the credit of the Corporation at any bank or
trust company or banking institution in which the Corporation may maintain
an account, cash, checks, notes, drafts, or other bankable securities or
instruments, and such authority may be general or confined to specific
instances as the Board of Directors may elect.
SECTION 7. ANNUAL MEETING. A meeting of each newly elected Board
of Directors may be held without notice in each year immediately following
the annual meeting of shareholders.
SECTION 8. REGULAR MEETINGS. Regular meetings of the Board of
Directors or any committee designated by the Board of Directors may be held
without notice at such time and place (in or out of Colorado) as may be
determined by the Board of Directors from time to time.
SECTION 9. SPECIAL MEETINGS. Special meetings of the Board of
Directors or any committee designated by the Board of Directors may be
called by the President or any two Directors (or any two members of the
committee, in the case of a committee meeting) at the principal office of
the Corporation (or such other meeting place established by the Board of
Directors) unless a different place is agreed to by all Directors. Notice
of a special meeting shall be personally delivered, mailed, telegraphed,
telecopied or telephoned to each Director or committee member at least two
days prior thereto. Neither the business to be transacted at, nor the
purpose of such meeting need to be specified in said notice. A waiver of
notice of a meeting which is in writing and signed by the Director entitled
to such notice, whether before, at or after the meeting, shall be
equivalent to the giving of notice. By attending or participating in a
meeting, a Director waives any required notice of such meeting unless the
Director, at the beginning of such meeting, objects to the holding of such
meeting or the transacting of business at the meeting because of lack of
notice or defective notice and does not thereafter vote for, or assent to,
action taken at the meeting.
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SECTION 10. QUORUM. At all meetings of the Board of Directors, a
quorum shall consist of a majority of the number of Directors fixed in
these Bylaws, and a majority vote of those present shall be necessary and
sufficient to constitute the act of the Directors, except as otherwise
provided herein, in the Articles of Incorporation or by the Colorado
Business Corporation Act . A majority of those Directors present at any
Directors' meeting, whether or not a quorum is present, may adjourn the
meeting from time to time but, except as set forth in the Articles of
Incorporation, elsewhere in these Bylaws, or by the Colorado Business
Corporation Act, in the absence of a quorum no other business may be conducted.
SECTION 11. TELEPHONE MEETINGS. Any Director or any committee
designated by the Board of Directors may participate in a meeting of the
Board of Directors or committee by, or the meeting may be conducted through
the use of, any means of communication by which all persons participating
in the meeting can hear each other during the meeting. A Director
participating in a meeting by this means is deemed present in person at the
meeting. If notice of a Board of Directors' meeting or committee meeting
is given, such notice need not specify that one or more Directors may
participate in the meeting by means of such communication.
SECTION 12. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of the Board of Directors or any
committee designated by the Board of Directors may be taken without a
meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each Director or committee member,
and delivered to the Secretary for inclusion in the minutes or for filing
with the corporate records. Action taken by written consent is effective
when the last Director or committee member signs the written consent,
unless before such time, any Director or committee member has revoked his
or her written consent by a writing signed by the Director or committee
member and received by the Secretary or Assistant Secretary of the
Corporation. Notwithstanding the foregoing, Directors can establish a
different effective date by so stating in the consent. Action taken
pursuant to this Section has the same effect as action taken at a meeting
of Directors and may be described as such in any document.
SECTION 13. PRESUMPTION OF ASSENT. A Director of the Corporation
who is present at a meeting of the Board of Directors at which action on
any corporate matter is taken shall be presumed to have assented to the
action taken unless (a) 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 because of lack of notice or defective
notice, and does not thereafter vote for or assent to any action taken at
the meeting, (b) 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 (c) 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 Corporation promptly after adjournment of the meeting. Such right to
dissent to specific action shall not apply to a Director who voted in favor
of such action.
SECTION 14. FEES AND COMPENSATION. Directors shall not receive any
stated salary for their services as Directors, but, by resolution of the
Board of Directors, a fixed fee, with or without expenses of attendance,
may be paid to one or more of the Directors for attendance at each
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meeting. Nothing herein contained shall be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation therefor.
SECTION 15. CHAIRMAN OF THE BOARD. A Director may be elected by
the Board of Directors to fill the office of the Chairman of the Board of
Directors and another Director may be so elected to fill the office of
Vice-Chairman of the Board of Directors. In the event the President of the
Corporation is also a Director and no Chairman of the Board of Directors is
elected, the President will act as EX OFFICIO Chairman of the Board of
Directors. The Chairman of the Board of Directors and in his absence the
Vice-Chairman, if such officer or officers shall be chosen by the Board of
Directors, shall, if present, preside at all meetings of the Board of
Directors. The Chairman shall, subject to the direction of the Board of
Directors, have general oversight over the affairs of the Corporation and
shall, from time to time, consult and advise with the President in the
direction and management of the Corporation's business and affairs. He
shall also do and perform such other duties as may, from time to time, be
assigned to him by the Board of Directors.
ARTICLE V
Officers
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SECTION 1. OFFICERS. The officers of the Corporation shall
include a President, Secretary and a Treasurer. The Corporation may also
have, at the discretion of the Board of Directors, one or more Vice
Presidents, one or more Assistant Secretaries, and one or more Assistant
Treasurers, and such other officers and/or agents as may be appointed and
as the business of the Corporation may require and the Board of Directors
may deem proper. The officers must be natural persons at least 18 years
old but need not be Directors or shareholders. Any two or more offices may
be held by the same person.
SECTION 2. APPOINTMENT. The Board of Directors, at its first
meeting after each annual meeting of shareholders, shall appoint the
officers, and may, not inconsistent with the Bylaws, fix the powers and
duties of any officer. Notwithstanding the foregoing, the Board of
Directors may by resolution authorize any officer to appoint and/or remove
one or more other officers or assistant officers, provided that unless
expressly provided by the Board of Directors, no Vice President or
assistant officer may exercise a power to appoint or remove the President
or any senior officer to whom they are an assistant. Each officer so
chosen shall hold office from the time of appointment until the first to
occur of (a) the expiration of the term of his appointment (if a term is
set by the Board of Directors) and the appointment of his successor, (b)
his removal or resignation, or (c) his death.
SECTION 3. REMOVALS, RESIGNATIONS, AND VACANCIES. Any officers or
agents may be removed, with or without cause, at any time by the Board of
Directors, or by any officer that the Board of Directors has authorized to
remove the officer or agent being removed.
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Any officer may resign at any time by giving written notice to any
Director, to the President, or to the Secretary of the Corporation;
provided the notice is given to someone other than the resigning officer.
A resignation is effective when notice is received by a Director, the
President, or the Secretary of the Corporation, unless the notice specifies
a later effective date. Acceptance of the resignation shall not be
necessary unless the notice so provides.
A vacancy in any office because of death, resignation or removal shall
be filled in the manner prescribed in these Bylaws for regular appointments
to such office.
SECTION 4. PRESIDENT. Subject to such supervisory powers, if any,
as may be given by the Board of Directors to the Chairman of the Board of
Directors, if there be such an officer, the President shall be 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 have the general
powers and duties of management usually vested in the office of a President
of a Corporation, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
SECTION 5. 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 these Bylaws.
SECTION 6. SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the shareholders and record all
votes. The Secretary shall be responsible for the preparation and
maintenance of minutes of the meetings of the Board of Directors and the
shareholders and any other records and information required to be kept
under Section 7-116-101 of the Colorado Business Corporation Act and for
authenticating records of the Corporation. He shall keep, or cause to be
kept, a stock register showing the names of the shareholders, number and
date of certificates issued, and the number and date of cancellation of
every certificate surrendered for cancellation. He shall give, or cause to
be given, notice of all meetings of the shareholders and meetings of the
Board of Directors as required. He shall perform such other duties as may
be prescribed by the Board of Directors. He shall keep in safe custody the
seal of the Corporation, and when authorized by the Board of Directors,
shall affix the same to any instrument requiring it; and when so affixed
the seal shall be attested by his signature or by the signature of the
Assistant Secretary, the Treasurer or a Vice President.
SECTION 7. TREASURER. The Treasurer shall keep and maintain, or
cause to be kept and maintained, adequate and correct accounting records
affecting the Corporation. The books of account shall at all reasonable
times be open to inspection by any Director.
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The Treasurer shall deposit all monies 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 Treasurer and of the financial condition of the
Corporation. He shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or these Bylaws.
If required by the Board of Directors, the Treasurer shall obtain a
bond at the Corporation's expense in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money, and other property of
whatsoever kind in his possession or under his control belonging to the
Corporation.
SECTION 8. ASSISTANTS. The assistant officers (if any) shall, in
the order of their seniority (unless otherwise designated by the Board of
Directors), and in the absence or disability of the officer to whom they
are an assistant, perform the duties of such officer; and when so acting
they shall have all the powers of, and be subject to all the restrictions
upon, such officer. They 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, the officers of the Corporation, or these Bylaws.
ARTICLE VI
Miscellaneous
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SECTION 1. ACCOUNTING PERIOD. The Corporation shall keep its
books and file its tax returns on a calendar year basis, unless otherwise
determined by the Board of Directors.
SECTION 2. AMENDMENTS. These Bylaws may be amended or repealed
and new Bylaws may be adopted from time to time, by action of the Board of
Directors unless the Articles of Incorporation reserve the power
exclusively to the shareholders, in whole or in part, or the shareholders,
in amending or repealing a particular Bylaw, provide expressly that the
Directors may not amend or repeal such Bylaw. The shareholders may also
amend or repeal the Bylaws even though the Bylaws may be amended or
repealed by the Board of Directors. Notwithstanding the foregoing, a Bylaw
that establishes the quorum requirement for the Board of Directors of more
than a majority of the number of Directors or requires a vote of more than
a majority of the Directors present at a meeting for action by the Board of
Directors (a) if adopted by the shareholders may be amended only by the
shareholders, or (b) if adopted by the Board of Directors may be modified
by the shareholders or by the Board of Directors using the quorum and
voting requirement then in effect or proposed to be adopted, whichever is
greater, and (c) if authorized by the Articles of Incorporation, the
shareholders (but not the Board of Directors) may
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adopt and modify a Bylaw fixing a greater quorum or voting requirement for
shareholders (or voting groups of shareholders) than required by the
Colorado Business Corporation Act using the quorum and voting requirement
then in effect or proposed to be adopted, whichever is greater.
CERTIFICATE
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I hereby certify that the foregoing Bylaws, consisting of 14 pages,
including this page, constitute the Bylaws of WINCO SPIN-OFF CORPORATION
adopted by the Board of Directors of the corporation as of the 31ST day of
July, 2000.
/s/ DANIEL L. DALKE
----------------------------------
Daniel L. Dalke,
Secretary of Winco Spin-Off Corporation
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