SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to ___________
Commission file number 0-7261
CHAPARRAL RESOURCES, INC.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 84-0630863
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3400 Bissonnet Street, Suite 135
Houston, Texas 77005
--------------------------------------
(Address of principal executive offices)
(Zip Code)
(713) 669-0932
--------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
As of November 5, 1997, the Registrant had 44,470,731 shares of its $0.10
par value common stock issued and outstanding.
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<CAPTION>
PART I--SUMMARIZED FINANCIAL INFORMATION
CHAPARRAL RESOURCES, INC.
Consolidated Balance Sheets
September 30, November 30,
1997 (unaudited) 1996
---------------- ------------
<S> <C> <C>
ASSETS
- ------
CURRENT ASSETS
Cash and cash equivalents $ 94,000 $ 800,000
Accounts receivable
Joint interest participants -- 8,000
Oil and gas purchasers -- 53,000
Prepaid expenses 140,000 40,000
Oil and gas properties under agreement for sale -- 306,000
------------ ------------
Total current assets 234,000 1,207,000
PROPERTY AND EQUIPMENT - AT COST
Oil and Gas Properties - full cost:
Republic of Kazakhstan (Karakuduk Field) not
subject to depletion 12,692,000 11,189,000
------------ ------------
12,692,000 11,189,000
Furniture, fixtures and equipment 275,000 441,000
Less accumulated depreciation 17,000 198,000
------------ ------------
258,000 234,000
------------ ------------
12,950,000 11,432,000
OTHER ASSETS
Cash value of insurance and annuities -- 8,000
Due from Karakuduk-Munay, Inc. 3,174,000 2,012,000
Equipment inventory -- 27,000
Other 130,000 74,000
------------ ------------
3,304,000 2,121,000
------------ ------------
$ 16,488,000 $ 14,760,000
------------ ------------
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES
Accounts payable
Trade $ 665,000 $ 278,000
Joint interest participants - revenue -- 42,000
Accrued liabilities 21,000 91,000
Accounts payable CAP-G shares 444,000 744,000
------------ ------------
Total current liabilities 1,130,000 1,155,000
------------ ------------
LONG TERM OBLIGATIONS
Notes payable (including $1,100,000 to related party) 1,240,000 1,106,000
Accrued compensation 412,000 385,000
------------ ------------
1,652,000 1,491,000
STOCKHOLDERS' EQUITY
Common stock - authorized, 100,000,000 shares of
$0.10 par value, issued and outstanding; 42,392,965 4,239,000 3,753,000
and 37,526,517 shares at September 30, 1997 and
November 30, 1996, respectively
Capital in excess of par value 23,070,000 20,482,000
Preferred stock - authorized, 1,000,000 shares
as of September 30, 1997 and November 30, 1996
(no shares issued or outstanding)
Retained earnings (deficit) (13,603,000) (12.121,000)
------------ ------------
Total shareholders' equity 13,706,000 12,114,000
------------ ------------
Total liabilities and stockholders' equity $ 16,488,000 $ 14,760,000
------------ ------------
See accompanying notes to financial statements.
2
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<CAPTION>
CHAPARRAL RESOURCES, INC.
Consolidated Statements of Operations
(Unaudited)
For the Three Months Ended For the Nine Months Ended
-------------------------- -------------------------
September August 31, September 30, August 31,
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenue:
Oil and gas sales $ -- $ 35,000 $ 52,000 $ 116,000
------------ ------------ ------------ ------------
Cost and expenses:
Production costs -- 17,000 18,000 25,000
Loss on sale of domestic oil and gas -- -- 36,000 --
properties
Depreciation and depletion 7,000 41,000 8,000 80,000
General and administrative 474,000 339,000 1,424,000 688,000
------------ ------------ ------------ ------------
481,000 397,000 1,486,000 793,000
------------ ------------ ------------ ------------
(Loss) from operations (481,000) (362,000) (1,434,000) (677,000)
Other income (expenses):
Interest income 58,000 9,000 142,000 11,000
Interest expense (59,000) -- (189,000) (28,000)
Other, net -- 21,000 (1,000) 22,000
------------ ------------ ------------ ------------
(1,000) 30,000 (48,000) 5,000
------------ ------------ ------------ ------------
Net (loss) $ (482,000) $ (332,000) $ (1,482,000) $ (672,000)
------------ ------------ ------------ ------------
Earnings (loss) per common share $ (0.011) $ (0.009) $ (0.037) $ (0.022)
============ ============ ============ ============
Average number of outstanding shares 42,508,350 37,409,850 39,608,833 30,277,448
------------ ------------ ------------ ------------
See accompanying notes to financial statements
3
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<TABLE>
<CAPTION>
CHAPARRAL RESOURCES, INC.
Consolidated Statements of Cash Flows
(Unaudited)
For the Nine Months Ended
--------------------------------
September 30, August 31,
1997 1996
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net (loss) $(1,482,000) $ (672,000)
Adjustments to reconcile net (loss) to net
cash used by operating activities:
Depreciation and depletion 8,000 80,000
Amortization of note discount 99,000 --
Loss on the sale of domestic oil and gas
property 33,000 --
Changes in assets and liabilities:
(increase) in:
Accounts receivable 10,000 18,000
Notes receivable (35,000)
Prepaid expenses (100,000) 2,000
Other assets (28,000) (650,000)
Equipment inventory 3,000
Increase (decrease) in:
Accounts payable 389,000 1,611,000
Accrued liabilities 51,000 (26,000)
----------- -----------
Net cash (used in) operating activities (1,020,000) 331,000
Cash flows from investing activities:
Additions to property and equipment (23,000) 56,000
Investment in foreign oil and gas properties -- (3,855,000)
Additions to Republic of Kazakhstan (Karakuduk
Field) not subject to depletion (1,487,000) (3,195,000)
Advances to Karakuduk-Munay, Inc. (1,162,000) --
Increase (decrease) in minority interest 50,000
Proceeds from sale of interest in oil & gas
properties 273,000 19,000
----------- -----------
Net cash provided from (used in) investing
activities (2,399,000) (6,925,000)
Cash flows from financing activities:
Payment of Note (600,000) (750,000)
Proceeds from notes payable 100,000 --
Proceeds from sale of stock 3,074,000 7,552,000
----------- -----------
Net cash provided by financing activities 2,574,000 6,802,000
----------- -----------
Net (decrease) in cash and cash equivalents (845,000) 208,000
Cash and cash equivalents at beginning of period 939,000 501,000
----------- -----------
Cash and cash equivalents at end of 2nd quarter $ 94,000 $ 2,357,000
----------- -----------
See accompanying notes to financial statements.
4
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<PAGE>
CHAPARRAL RESOURCES, INC.
Notes to Consolidated Financial Information
Unaudited
(1) GENERAL
Management has elected to omit substantially all notes to the Company's
financial statements. Reference should be made to the notes to the financial
statements in the Company's Annual Report on Form 10-K for the fiscal year ended
November 30, 1996.
(2) UNAUDITED INFORMATION
The information furnished herein was taken from the books and records of
the Company without audit. However, such information reflects all adjustments
(consisting only of normal recurring adjustments) which are, in the opinion of
management, necessary to a fair statement of the results for the interim periods
presented. The results of operations for the interim periods are not necessarily
indicative of the results to be expected for the year.
The November 30, 1996 balance sheet data is derived from the audited
financial statements but does not include all disclosures required by generally
accepted accounting principles.
(3) Going Concern
The Company's financial statements have been presented on the basis that it
is a going concern, which contemplates the realization of assets and the
satisfaction of liabilities in the normal course of business. The Company has
over 80% of its assets invested in entities that are pursuing the development of
the Karakuduk field, a shut in oil field in the central Asian Republic of
Kazakhstan, which will require significant additional funding.
The Company's current cash reserves and cash flow from operations will not
be sufficient to meet the Company's capital requirements through fiscal 1997.
While the Company believes that additional funds will be available from
additional financing, there can be no assurance that such will be the case.
There is also no assurance that additional financing, if available, can be
obtained on terms favorable or affordable to the Company.
The Company's continued existence as a going concern in its present form is
dependent upon the success of future operations, which is, in the near term,
dependent on the successful financing and development of the Karakuduk field, of
which there is no assurance.
5
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MANAGEMENT'S DISCUSSION AND ANALYSIS
OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(1) Liquidity and Capital Resources
Previously, the Company's primary source of capital was from oil and gas
sales from domestic properties. All domestic properties have been sold or
otherwise disposed. The only oil and gas interest of the Company at this time is
as a result of the Company's investment in Karakuduk-Munay, Inc. (KKM) through
Central Asian Petroleum Guernsey Limited (CAP-G). KKM is a closed joint stock
company in Kazakhstan.
Due to the timing of the final payment of $443,750 related to the
acquisition of an interest in CAP-G, current liabilities of $1,130,000 exceed
the current assets of $234,000 at September 30, 1997, resulting in a current
ratio of 0.21 to 1. Without the purchase payment obligation, the current ratio
would be 0.33 to 1. An extension of the due date for the final payment on the
acquisition of this interest and the terms of the option for the remaining 10%
interest in CAP-G are currently being negotiated. The Company now owns 90% of
CAP-G, providing a 45% beneficial interest in the Karakuduk field. Upon
exercising the option, the Company will have a 50% beneficial interest in the
Karakuduk field. The other 50% is owned by Kazak Oil, the Kazakhstan national
oil company, and a private Kazakhstan joint stock company.
Since the Karakuduk field is in the early stage of development, the field
does not currently produce revenues sufficient to meet its cash outflow needs.
The development of the Karakuduk field, through KKM, will require substantial
amounts of additional capital. The terms of the KKM revised license require a
work plan from the commencement of operations through December 31, 1997, of at
least $10,000,000. Of this amount, approximately $7,000,000 has been expended to
date and the Company's remaining share through December 31, 1997 is estimated at
$3,000,000. The license, which was amended by the authority of the government of
Kazakhstan, originally required that the work plan be completed by August 31,
1997. It is anticipated that the Company will either have spent or will have
committed to the required expenditures by this date. Additional requirements
exist for the year ending December 31, 1998.
KKM was re-registered on July 24, 1997 with the government of Kazakhstan.
The re- registration was required as a result of new legislation in Kazakhstan.
The Company believes that KKM is now in compliance with all Kazakhstan laws and
regulations related to the registration requirements relating to legal entities.
The re-registered KKM includes newly established Kazak Oil, the national
petroleum company which holds the majority of the interest of the government of
Kazakhstan in KKM.
6
<PAGE>
The Company received an extension to December 31, 1997 from the Overseas
Private Investment Corp. ("OPIC") for political risk insurance. OPIC granted the
Company a binding executed letter of commitment on September 25, 1996. It was to
expire on June 30, 1997. The Company has a standby facility for which it has
made five previous payments of $31,250. The Company expects to execute the
contract in the fourth quarter of 1997.
The Company has raised capital to finance a portion of its obligations in
connection with the acquisition of its interest in CAP-G and the development of
the Karakuduk field and to satisfy working capital needs in the short term. The
amount raised since July 1, 1997, was approximately $350,000 in short term
loans, $450,000 from an expired option, $300,000 through the sale of common
stock and $1,499,999.80 through the partial exercise of a warrant. The Company
plans to meet its additional capital needs through debt or equity offerings,
encumbering properties, entering into arrangements whereby certain costs of
development will be paid by others to earn an interest in the properties, or
sale of a portion of the Company's interest in the Karakuduk field. The present
environment for financing the acquisition of oil and gas properties or the
ongoing obligations of the oil and gas business is uncertain due, in part, to
instability in oil and gas pricing in recent years. The Company's small size and
early stage of development of the Karakuduk field may also increase the
difficulty in raising needed financing. There can be no assurance that debt or
equity financing anticipated to be necessary to continue to fund the Company's
operations and obligations will be available to the Company on economically
acceptable terms if at all. If sufficient funds cannot be raised to meet the
continuing obligations with respect to the Karakuduk field development, the
Company's interest in such property may be lost. Also, if sufficient funds
cannot be raised to provide additional working capital, it is likely that the
Company will not be able to continue operations.
The Company has no other material commitments for cash outlay and capital
expenditures other than for normal operations.
(2) Results of Operations
ln order to unite the reporting period of the Company with that of its
subsidiaries, the fiscal year was changed to a December 31 year end from the
previous November 30 year end. This change took effect in the second quarter of
1997. As a result of this change, quarterly and year to date data is as of
September 30 for 1997 and as of August 31 for 1996.
Three Months Ended September 30, 1997 vs Three Months Ended August 31, 1996.
The Company's operations resulted in a net loss of $482,000 for the three
month period ended September 30, 1997 compared to a net loss of $332,000 for the
three months ended August 31, 1996. Although the Company significantly reduced
its corporate overhead costs, increases in general and administrative costs
still accounted for most of this change. This was the result of costs incurred
7
<PAGE>
related to the operation of the Company's beneficial interest in the Karakuduk
field and financing costs for the project. The Company has elected not to
capitalize the general and administrative expense at this time, however, these
amounts may be capitalized upon final financing for the project. Due to the
previous sale of the domestic properties, there was no revenue during the three
months ended September 30, 1997. Interest expense during the three months ended
September 30, 1997, was $59,000 which was incurred in connection with financing
the Company obtained, primarily for the Karakuduk field.
Nine Months Ended September 30, 1997 vs. Nine Months Ended August 31, 1996.
The Company realized a loss on the sale of the Company's domestic oil and
gas properties that totaled $36,000 during the three months ended March 31,
1997. There was a $43,000 gain related to subsidiary billings of related party
transactions.
General and administrative expenses increased from $688,000 during the nine
months ended August 31, 1996 to $1,424,000, during the nine months ended
September 30, 1997, an increase of 172%. Although the Company significantly
reduced its corporate overhead costs, increases in general and administrative
costs still accounted for most of this change. This was the result of costs
incurred related to the operation of the Company's beneficial interest in the
Karakuduk field and financing costs for the project. Due to the previous sale of
the domestic properties, there was no revenue during the six months ended
September 30, 1997.
Interest expense during the nine months ended September 30, 1997, was
$189,000 which was incurred in connection with financing the Company obtained,
primarily for the Karakuduk field. Interest income is primarily that portion of
interest undertaken on behalf of the stockholders of Karakuduk which is
indirectly owed to the Company.
8
<PAGE>
PART II - OTHER INFORMATION
Item 2 - Changes in Securities
(c) On September 3, 1997, the Company sold 461,358 shares of the Company's
common stock for $0.65 per share for a total of $300,000 to a private investor.
In connection with the transaction, the Company also issued a warrant to the
investor to purchase up to an additional 461,358 shares of the Company's common
stock for $300,000 or $0.65 per share. The warrant expires on December 31, 1997,
if not previously exercised. The Company issued the stock and warrant in
reliance upon the exemption from registration under Section 4(2) of the
Securities Act of 1933, as amended. The investor represented to the Company that
the investor acquired the stock and warrant for the investor's own account and
not with a view to distribution. The investor had available to the investor all
material information concerning the Company. The certificates evidencing the
stock and warrant bear or will bear an appropriate restrictive legend under the
Securities Act of 1933, as amended.
During the period from July 1, 1997, through September 30, 1997, the
Company granted five year options to purchase 1,625,000 shares of the Company's
common stock to certain directors of the Company. Options relating to 825,000
shares have an exercise price of $0.75 per share and options relating to 800,000
shares having an exercise price of $1.50 per share. The Company does not
consider the grants of the options to be sales under the Securities Act of 1933,
as amended, because the Company received no consideration for the grants.
No underwriters were involved in the aforementioned transactions.
Item 4 - Submission of Matters to A Vote of Security Holders
On July 17, 1997 the Company held its Annual Meeting of Stockholders. The
Company's stockholders elected the following eight persons as directors, each to
serve until the next Annual Meeting of Stockholders or until his successor is
elected or appointed: Howard Karren, Peter G. Dilling, Jay W. McGee, Alan D.
Berlin, Walter A. Carozza, David A. Dahl, John G. McMillian and Arlo G.
Sorensen. The Company's stockholders also voted to adopt, separately, a 1997
Stock Incentive Plan and a 1997 Nonemployee Directors' Stock Option Plan.
9
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The number of shares voted and withheld with respect to each director were
as follows:
Election of Directors For Withheld
- --------------------- --- --------
Howard Karren 24,756,934 540,387
Peter G. Dilling 23,072,406 2,224,915
Jay W. McGee 22,726,326 2,570,995
Alan D. Berlin 23,216,656 2,080,665
Walter A. Carozza 24,660,134 637,187
David A. Dahl 23,243,206 2,054,115
John G. McMillian 24,755,784 541,537
Arlo G. Sorensen 23,244,106 2,053,215
The number of shares voted with respect to the approval of the 1997
Incentive Stock Plan was as follows:
For Against Abstain Broker Non-Votes
- --- ------- ------- ----------------
17,088,991 3,253,159 193,019 4,762,152
The number of shares with respect to the approval of the 1997 Nonemployee
Directors' Stock Option Plan was as follows:
For Against Abstain Broker Non-Votes
- --- ------- ------- ----------------
15,110,428 5,229,093 196,648 4,761,152
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibits
3(ii) Bylaws as amended through October 31, 1997
10.1 Amendment to Common Stock Purchase Warrant dated December 31, 1997
entitling Victory Ventures, LLC to purchase up to 4,615,385
shares of common stock of Chaparral Resources, Inc.
10.2 Amendment dated September 11, 1997, to License for Right to Use the
Subsurface in the Republic of Kazakhstan
27 Financial Data Schedule
(b) Reports on Form 8-K.
None.
10
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant duly has caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 7, 1997
CHAPARRAL RESOURCES, INC.,
a Colorado Corporation
By: /s/ Howard Karren
-------------------------------------------
Howard Karren
President and Principal Executive Officer
By: /s/ Arlo G. Sorensen
-------------------------------------------
Arlo G. Sorensen, Chief Financial Officer
and Principal Accounting Officer
11
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EXHIBIT INDEX
3(ii) Bylaws as amended through October 31, 1997
10.1 Amendment to Common Stock Purchase Warrant dated December 31, 1997
entitling Victory Ventures, LLC to purchase up to 4,615,385 shares of
common stock of Chaparral Resources, Inc.
10.2 Amendment dated September 11, 1997, to License for Right to Use the
Subsurface in the Republic of Kazakhstan
27 Financial Data Schedule
12
As Amended October 31, 1997
BYLAWS
OF
CHAPARRAL RESOURCES, INC.
ARTICLE I
Offices
The principal office of the corporation shall be designated from time to
time by the corporation and may be within or outside of Colorado.
The corporation may have such other offices, either within or outside
Colorado, as the board of directors may designate or as the business of the
corporation may require from time to time.
The registered office of the corporation required by the Colorado Business
Corporation Act 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.
ARTICLE II
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held each year on a date and at a time fixed by the board of directors of the
corporation (or by the chairman of the board or the president in the absence of
action by the board of directors), for the purpose of electing directors and for
the transaction of such other business as may come before the meeting. If the
election of directors is not held on the day fixed as provided herein for any
annual meeting of the shareholders, or any adjournment thereof, the board of
directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as it may conveniently be held.
A shareholder may apply to the district court in the county in Colorado
where the corporation's principal office is located or, if the corporation has
no principal office in Colorado, to the district court of the county in which
the corporation's registered office is located to seek an order that a
shareholder meeting be held (i) if an annual meeting was not held within six
months after the close of the corporation's most recently ended fiscal year or
fifteen months after its last annual meeting, whichever is earlier, or (ii) if
the shareholder participated in a proper call of or proper demand for a special
meeting and notice of the special meeting was not given within thirty days after
the date of the call or the date the last of the demands necessary to require
calling of the meeting was received by the corporation, or the special meeting
was not held in accordance with the notice.
<PAGE>
Section 2. Special Meetings. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
chairman of the board, by the president or by the board of directors. The
president shall call a special meeting of the shareholders if the corporation
receives one or more written demands for the meeting, stating the purpose or
purposes for which it is to be held, signed and dated by holders of shares
representing at least ten percent of all the votes entitled to be cast on any
issue proposed to be considered at the meeting.
Section 3. Place of Meeting. The board of directors may designate any
place, either within or outside Colorado, as the place for any annual meeting or
any special meeting called by the board of directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or outside Colorado, as the place for such meeting. If no
designation is made, or if a special meeting is called other than by the board,
the place of meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting. Written notice stating the place, date, and
hour of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting, except that (i) if the number of authorized
shares is to be increased, at least thirty days' notice shall be given, or (ii)
if any other longer notice period is required by the Colorado Business
Corporation Act. Notice of a special meeting shall include a description of the
purpose or purposes of the meeting. Notice of an annual meeting need not include
a description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
the corporation controls, in each case with or without the goodwill, (iv) a
dissolution of the corporation, or (v) any other purpose for which a statement
of purpose is required by the Colorado Business Corporation Act. Notice shall be
given personally or by mail, private carrier, telegraph, teletype,
electronically transmitted facsimile or other form of wire or wireless
communication by or at the direction of the president, the secretary, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed and if in a comprehensible form, such notice
shall be deemed to be given and effective when deposited in the United States
mail, addressed to the shareholder at his address as it appears in the
corporation's current record of shareholders, with postage prepaid. If notice is
given other than by mail, and provided that such notice is in a comprehensible
form, the notice is given and effective on the date received by the shareholder.
If requested by the person or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporate expense. No notice need be sent
to any shareholder if three successive notices mailed to the last known address
of such shareholder have been returned as undeliverable until such time as
another address for such shareholder is made known to the corporation by such
- 2 -
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shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need not
be given of the new date, time or place if the new date, time or place of such
meeting is announced before adjournment at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which may have been transacted at the original meeting. If the adjournment is
for more than 120 days, or if a new record date is fixed for the adjourned
meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such shareholder. Such waiver shall
be delivered to the corporation for filing with the corporate records. Further,
by attending a meeting either in person or by proxy, a shareholder waives
objection to lack of notice or defective notice of the meeting unless the
shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the shareholder also waives any
objection to consideration at the meeting of a particular matter not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
Section 5. Fixing of Record Date. For the purpose of determining
shareholders entitled to (i) notice of or vote at any meeting of shareholders or
any adjournment thereof, (ii) receive distributions or share dividends, or (iii)
demand a special meeting, or to make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If no record date
is fixed by the directors, the record date shall be the date on which notice of
the meeting is mailed to shareholders, or the date on which the resolution of
the board of directors providing for a distribution is adopted, as the case may
be. When a determination of shareholders entitled to vote at any meeting of
shareholders is made as provided in this Section, such determination shall apply
to any adjournment thereof unless the board of directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting.
Notwithstanding the above, the record date for determining the shareholders
entitled to take action without a meeting or entitled to be given notice of
action so taken shall be the date a writing upon which the action is taken is
first received by the corporation. The record date for determining shareholders
entitled to demand a special meeting shall be the date of the earliest of any of
the demands pursuant to which the meeting is called.
- 3 -
<PAGE>
Section 6. Voting Lists. The secretary shall make, at the earlier of ten
days before each meeting of shareholders or two business days after notice of
the meeting has been given, a complete list of the shareholders entitled to be
given notice of such meeting or any adjournment thereof. The list shall be
arranged by voting groups and within each voting group by class or series of
shares, shall be in alphabetical order within each class or series, and shall
show the address of and the number of shares of each class or series held by
each shareholder. For the period beginning the earlier of ten days prior to the
meeting or two business days after notice of the meeting is given and continuing
through the meeting and any adjournment thereof, this list shall be kept on file
at the principal office of the corporation, or at a place (which shall be
identified in the notice) in the city where the meeting will be held. Such list
shall be available for inspection on written demand by any shareholder
(including for the purpose of this Section 6 any holder of voting trust
certificates) or his agent or attorney during regular business hours and during
the period available for inspection. The original stock transfer books shall be
prima facie evidence as to the shareholders entitled to examine such list or to
vote at any meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular
business hours and during the period it is available for inspection, provided
(i) the shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose, and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
Section 7. Recognition Procedure for Beneficial Owners. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth (i) the types of
nominees to which it applies, (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting, (iii) the form of certification and the information to be
contained therein, (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation, (v)
the period for which the nominee's use of the procedure is effective, and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
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Section 8. Quorum and Manner of Acting. One-third of the votes entitled to
be cast on a matter by a voting group shall constitute a quorum of that voting
group for action on the matter. If less than one-third of such votes are
represented at a meeting, a majority of the votes so represented may adjourn the
meeting from time to time without further notice, for a period not to exceed 120
days for any one adjournment. If a quorum is present at such adjourned meeting,
any business may be transacted which might have been transacted at the meeting
as originally noticed. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum, unless the meeting is
adjourned and a new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than the election of directors
by a voting group is approved if the votes cast within the voting group favoring
the action exceed the votes cast within the voting group opposing the action,
unless the vote of a greater number or voting by classes is required by law or
the articles of incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder may vote
by proxy by signing an appointment form or similar writing, either personally or
by his duly authorized attorney-in-fact. A shareholder may also appoint a proxy
by transmitting or authorizing the transmission of a telegram, teletype, or
other electronic transmission providing a written statement of the appointment
to the proxy, a proxy solicitor, proxy support service organization, or other
person duly authorized by the proxy to receive appointments as agent for the
proxy, or to the corporation. The transmitted appointment shall set forth or be
transmitted with written evidence from which it can be determined that the
shareholder transmitted or authorized the transmission of the appointment. The
proxy appointment form or similar writing shall be filed with the secretary of
the corporation before or at the time of the meeting. The appointment of a proxy
is effective when received by the corporation and is valid for eleven months
unless a different period is expressly provided in the appointment form or
similar writing.
Any complete copy, including an electronically transmitted facsimile, of an
appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the
appointment, or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. Other notice of
revocation may, in the discretion of the corporation, be deemed to include the
appearance at a shareholders' meeting of the shareholder who granted the proxy
and his voting in person on any matter subject to a vote at such meeting.
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The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 11 and any express limitation on the proxy's authority
appearing on the appointment form, the corporation is entitled to accept the
proxy's vote or other action as that of the shareholder making the appointment.
Section 10. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to one vote, except in the election of directors, and each
fractional share shall be entitled to a corresponding fractional vote on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by the articles of incorporation as permitted by the Colorado Business
Corporation Act. Cumulative voting shall not be permitted in the election of
directors or for any other purpose. Each record holder of stock shall be
entitled to vote in the election of directors and shall have as many votes for
each of the shares owned by him as there are directors to be elected and for
whose election he has the right to vote.
At each 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, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 11. Corporation's Acceptance of Votes. If the name signed on a
vote, consent, waiver, proxy appointment, or proxy appointment revocation
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corresponds to the name of a shareholder, the corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment or
proxy appointment revocation and give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or proxy
appointment revocation does not correspond to the name of a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and to
give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator,
executor, guardian or conservator representing the shareholder and, if
the corporation requests, evidence of fiduciary status acceptable to
the corporation has been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment revocation;
(iii) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the corporation has
been presented with respect to the vote, consent, waiver, proxy
appointment or proxy appointment revocation;
(iv) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's
authority to sign for the shareholder has been presented with respect
to the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least
one of the co-tenants or fiduciaries, and the person signing appears
to be acting on behalf of all the co-tenants or fiduciaries; or
(vi) the acceptance of the vote, consent, waiver, proxy
appointment or proxy appointment revocation is otherwise proper under
rules established by the corporation that are not inconsistent with
this Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
Neither the corporation nor its officers nor any agent who accepts or
rejects a vote, consent, waiver, proxy appointment or proxy appointment
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revocation in good faith and in accordance with the standards of this Section is
liable in damages for the consequences of the acceptance or rejection.
Section 12. Informal Action by Shareholders. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if a written consent (or counterparts thereof) that sets forth the
action so taken is signed by all of the shareholders entitled to vote with
respect to the subject matter thereof and received by the corporation. Such
consent shall have the same force and effect as a unanimous vote of the
shareholders and may be stated as such in any document. Action taken under this
Section 12 is effective as of the date the last writing necessary to effect the
action is received by the corporation, unless all of the writings specify a
different effective date, in which case such specified date shall be the
effective date for such action. If any shareholder revokes his consent as
provided for herein prior to what would otherwise be the effective date, the
action proposed in the consent shall be invalid. The record date for determining
shareholders entitled to take action without a meeting is the date the
corporation first receives a writing upon which the action is taken.
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 12 may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the corporation before the effectiveness of the action.
Section 13. Meetings by Telecommunication. Any or all of the shareholders
may participate in an annual or special shareholders' meeting by, or the meeting
may be conducted through the use of, any means of communication by which all
persons participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
Board of Directors
Section 1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of its board of directors, except as otherwise
provided in the Colorado Business Corporation Act or the articles of
incorporation.
Section 2. Number, Qualifications and Tenure. The number of directors of
the corporation shall be nine. A director shall be a natural person who is
eighteen years of age or older. A director need not be a resident of Colorado or
a shareholder of the corporation.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
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following his election and thereafter until his successor shall have been
elected and qualified. Directors shall be removed in the manner provided by the
Colorado Business Corporation Act.
Section 3. Vacancies. Any director may resign at any time by giving written
notice to the corporation. Such resignation shall take effect at the time the
notice is received by the corporation unless the notice specifies a later
effective date. Unless otherwise specified in the notice of resignation, the
corporation's acceptance of such resignation shall not be necessary to make it
effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders or the board of directors. If
the directors remaining in office constitute fewer than a quorum of the board,
the directors may fill the vacancy by the affirmative vote of a majority of all
the directors remaining in office. If elected by the directors, the director
shall hold office until the next annual shareholders' meeting at which directors
are elected. If elected by the shareholders, the director shall hold office for
the unexpired term of his predecessor in office; except that, if the director's
predecessor was elected by the directors to fill a vacancy, the director elected
by the shareholders shall hold office for the unexpired term of the last
predecessor elected by the shareholders.
Section 4. Regular Meetings. A regular meeting of the board of directors
shall be held without notice immediately after and at the same place as the
annual meeting of shareholders. The board of directors may provide by resolution
the time and place, either within or outside Colorado, for the holding of
additional regular meetings without other notice.
Section 5. Special Meetings. Special meetings of the board of directors may
be called by or at the request of the chairman of the board, the president or
any two directors. The person or persons authorized to call special meetings of
the board of directors may fix any place, either within or outside Colorado, as
the place for holding any special meeting of the board of directors called by
them.
Section 6. Notice. Notice of any special meeting shall be given at least
two days prior to the meeting by written notice either personally delivered or
mailed to each director at his business address, or by notice transmitted by
telegraph, telex, electronically transmitted facsimile or other form of wire or
wireless communication. If mailed, such notice shall be deemed to be given and
to be effective on the earlier of (i) three days after such notice is deposited
in the United States mail, properly addressed, with postage prepaid, or (ii) the
date shown on the return receipt, if mailed by registered or certified mail
return receipt requested. If notice is given by telex, electronically
transmitted facsimile or other similar form of wire or wireless communication,
such notice shall be deemed to be given and to be effective when sent, and with
respect to a telegram, such notice shall be deemed to be given and to be
effective when the telegram is delivered to the telegraph company. If a director
has designated in writing one or more reasonable addresses or facsimile numbers
for delivery of notice to him, notice sent by mail, telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be.
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A director may waive notice of a meeting before or after the time and date
of the meeting by a writing signed by such director. Such waiver shall be
delivered to the corporation for filing with the corporate records. Further, a
director's attendance at or participation in a meeting waives any required
notice to him of the meeting unless at the beginning of the meeting, or promptly
upon his later arrival, the director objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and does not thereafter vote for or assent to action taken at the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the number of directors fixed by the board
of directors pursuant to Section 2 of this Article III or, if no number is
fixed, a majority of the number in office immediately before the meeting begins,
shall constitute a quorum for the transaction of business at any meeting of the
board of directors.
If less than such majority is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice, for a period not to exceed sixty days at any one adjournment.
Section 8. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
Section 9. Compensation. By resolution of the board of directors, any
director may be paid any one or more of the following: his expenses, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the board of directors and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
Section 10. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless (i) the director objects at the beginning of the
meeting, or promptly upon his arrival, to the holding of the meeting or the
transaction of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting, (ii) the director contemporaneously
requests that his dissent or abstention as to any specific action taken be
entered in the minutes of the meeting, or (iii) the director causes written
notice of his dissent or abstention as to any specific action to be received by
the presiding officer of the meeting before its adjournment or by the
corporation promptly after the adjournment of the meeting. A director may
dissent to a specific action at a meeting, while assenting to others. The right
to dissent to a specific action taken at a meeting of the board of directors or
a committee of the board shall not be available to a director who voted in favor
of such action.
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Section 11. Committees. By resolution adopted by a majority of all the
directors in office when the action is taken, the board of directors may
designate from among its members an executive committee and one or more other
committees, and appoint one or more members of the board of directors to serve
on them. To the extent provided in the resolution, each committee shall have all
the authority of the board of directors, except that no such committee shall
have the authority to (i) authorize distributions, (ii) approve or propose to
shareholders actions or proposals required by the Colorado Business Corporation
Act to be approved by shareholders, (iii) fill vacancies on the board of
directors or any committee thereof, (iv) amend articles of incorporation, (v)
adopt, amend or repeal the bylaws, (vi) approve a plan of merger not requiring
shareholder approval, (vii) authorize or approve the reacquisition of shares
unless pursuant to a formula or method prescribed by the board of directors, or
(viii) authorize or approve the issuance or sale of shares, or contract for the
sale of shares or determine the designations and relative rights, preferences
and limitations of a class or series of shares, except that the board of
directors may authorize a committee or officer to do so within limits
specifically prescribed by the board of directors. The committee shall then have
full power within the limits set by the board of directors to adopt any final
resolution setting forth all preferences, limitations and relative rights of
such class or series and to authorize an amendment of the articles of
incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Colorado
Business Corporation Act.
Sections 4, 5, 6, 7, 8 and 12 this of Article III, which govern meetings,
notice, waiver of notice, quorum, voting requirements and action without a
meeting of the board of directors, shall apply to committees and their members
appointed under this Section 11.
Neither the designation of any such committee, the delegation of authority
to such committee, nor any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the board of directors or a
member of the committee in question with his responsibility to conform to the
standard of care set forth in Section 14 of this Article III.
Section 12. Informal Action by Directors. Any action required or permitted
to be taken at a meeting of the directors or any committee designated by the
board of directors may be taken without a meeting if a written consent (or
counterparts thereof) that sets forth the action so taken is signed by all of
the directors entitled to vote with respect to the action taken. Such consent
shall have the same force and effect as a unanimous vote of the directors or
committee members and may be stated as such in any document. Unless the consent
specifies a different effective date, action taken under this Section 12 is
effective at the time the last director signs a writing describing the action
taken, unless, before such time, any director has revoked his consent by a
writing signed by the director and received by the president or the secretary of
the corporation.
Section 13. Telephonic Meetings. The board of directors may permit any
director (or any member of a committee designated by the board) to participate
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in a regular or special meeting of the board of directors or a committee thereof
through the use of any means of communication by which all directors
participating in the meeting can hear each other during the meeting. A director
participating in a meeting in this manner is deemed to be present in person at
the meeting.
Section 14. Standard of Care. A director shall perform his duties as a
director, including without limitation his duties as a member of any committee
of the board, in good faith, in a manner he reasonably believes to be in the
best interests of the corporation, and with the care an ordinarily prudent
person in a like position would exercise under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated. However, he shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted. A director shall not be liable to the corporation or its
shareholders for any action he takes or omits to take as a director if, in
connection with such action or omission, he performs his duties in compliance
with this Section 14.
The designated persons on whom a director is entitled to rely are (i) one
or more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented, (ii) legal
counsel, public accountant, or other person as to matters which the director
reasonably believes to be within such person's professional or expert
competence, or (iii) a committee of the board of directors on which the director
does not serve if the director reasonably believes the committee merits
confidence.
ARTICLE IV
Officers and Agents
Section 1. General. The officers of the corporation shall be a president, a
secretary and a treasurer, each of whom shall be a natural person eighteen years
of age or older. The board of directors or an officer or officers authorized by
the board may appoint such other officers, assistant officers, committees and
agents, assistant secretaries and assistant treasurers, as they may consider
necessary. The board of directors or the officer or officers authorized by the
board shall from time to time determine the procedure for the appointment of
officers, their term of office, their authority and duties and their
compensation. One person may hold more than one office. In all cases where the
duties of any officer, agent or employee are not prescribed by the bylaws or by
the board of directors, such officer, agent or employee shall follow the orders
and instructions of the president of the corporation.
Section 2. Appointment and Term of Office. The officers of the corporation
shall be appointed by the board of directors at each annual meeting of the board
held after each annual meeting of the shareholders. If the appointment of
officers is not made at such meeting or if an officer or officers are to be
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appointed by another officer or officers of the corporation, such appointments
shall be made as soon thereafter as conveniently may be. Each officer shall hold
office until the first of the following occurs: his successor shall have been
duly appointed and qualified, his death, his resignation, or his removal in the
manner provided in Section 3.
Section 3. Resignation and Removal. An officer may resign at any time by
giving written notice of resignation to the corporation. The resignation is
effective when the notice is received by the corporation unless the notice
specifies a later effective date.
Any officer or agent may be removed at any time with or without cause by
the board of directors or an officer or officers authorized by the board or by
the shareholders. Such removal does not affect the contract rights, if any, of
the corporation or of the person so removed. The appointment of an officer or
agent shall not in itself create contract rights.
Section 4. Vacancies. A vacancy in any office, however occurring, may be
filled by the board of directors, or by the officer or officers authorized by
the board, for the unexpired portion of the officer's term. If an officer
resigns and his resignation is made effective at a later date, the board of
directors, or officer or officers authorized by the board, may permit the
officer to remain in office until the effective date and may fill the pending
vacancy before the effective date if the board of directors or officer or
officers authorized by the board provide that the successor shall not take
office until the effective date. In the alternative, the board of directors, or
officer or officers authorized by the board of directors, may remove the officer
at any time before the effective date and may fill the resulting vacancy.
Section 5. Chairman of the Board. The chairman of the board of directors,
if elected and if available, or if not elected or not available, the president,
shall preside at all meetings of the stockholders and of the board of directors.
Section 6. President. Subject to the direction and supervision of the board
of directors, the president shall have general and active control of the
corporation's affairs and business and general supervision of its officers,
agents and employees. Unless otherwise directed by the board of directors, the
president shall attend in person or by substitute appointed by him, or shall
execute on behalf of the corporation written instruments appointing a proxy or
proxies to represent the corporation, at all meetings of the stockholders of any
other corporation in which the corporation holds any stock. On behalf of the
corporation, the president may in person or by substitute or by proxy execute
written waivers of notice and consents with respect to any such meetings. At all
such meetings and otherwise, the president, in person or by substitute or proxy,
may vote the stock held by the corporation, execute written consents and other
instruments with respect to such stock, and exercise any and all rights and
powers incident to the ownership of said stock, subject to the instructions, if
any, of the board of directors. The president shall have custody of the
treasurer's bond, if any.
Section 7. Vice Presidents. If elected, the vice presidents shall assist
the chairman of the board and the president and shall perform such duties as may
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be assigned to them by the chairman of the board and the president or by the
board of directors. In the absence of the chairman of the board and the
president, the vice president, if any (or, if more than one, the vice presidents
in the order designated by the board of directors, or if the board makes no such
designation, then the vice president designated by the chairman of the board or
by the president, or if neither the board, the chairman of the board nor the
president makes any such designation, the senior vice president as determined by
first election to that office), shall have the powers and perform the duties of
the chairman of the board and the president.
Section 8. Secretary. The secretary shall (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors or any committee thereof, (ii) see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law, (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal to all documents when authorized by
the board of directors, (iv) keep at the corporation's registered office or
principal place of business a record containing the names and addresses of all
shareholders in a form that permits preparation of a list of shareholders
arranged by voting group and by class or series of shares within each voting
group, that is alphabetical within each class or series and that shows the
address of, and the number of shares of each class or series held by, each
shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar, (v) maintain at the corporation's
principal office the originals or copies of the corporation's articles of
incorporation, bylaws, minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting for the past three years, all
written communications within the past three years to shareholders as a group or
to the holders of any class or series of shares as a group, a list of the names
and business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements showing in reasonable detail the corporation's assets
and liabilities and results of operations for the last three years, (vi) have
general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent, (vii) authenticate records of the corporation,
and (viii) in general, perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him by the
president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary. The
directors and/or shareholders may however respectively designate a person other
than the secretary or assistant secretary to keep the minutes of their
respective meetings.
Any books, records, or minutes of the corporation may be in written form or
in any form capable of being converted into written form within a reasonable
time.
Section 9. Treasurer. The treasurer shall be the principal financial
officer of the corporation, shall have the care and custody of all funds,
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securities, evidences of indebtedness and other personal property of the
corporation and shall deposit the same in accordance with the instructions of
the board of directors. He shall receive and give receipts and acquittances for
money paid in on account of the corporation, and shall pay out of the
corporation's funds on hand all bills, payrolls and other just debts of the
corporation of whatever nature upon maturity. He shall perform all other duties
incident to the office of the treasurer and, upon request of the board, shall
make such reports to it as may be required at any time. He shall, if required by
the board, give the corporation a bond in such sums and with such sureties as
shall be satisfactory to the board, conditioned upon the faithful performance of
his duties and for the restoration to the corporation of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation. He shall have such other powers and
perform such other duties as may from time to time be prescribed by the board of
directors or the president. The assistant treasurers, if any, shall have the
same powers and duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account as
required by the Colorado Business Corporation Act, prepare and file all local,
state and federal tax returns, prescribe and maintain an adequate system of
internal audit and prepare and furnish to the president and the board of
directors statements of account showing the financial position of the
corporation and the results of its operations.
ARTICLE V
Stock
Section 1. Certificates. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the president and secretary or by one or more other persons
designated by the board of directors. In case any officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, such certificate
may nonetheless be issued by the corporation with the same effect as if he were
such officer at the date of its issue. Certificates of stock shall be in such
form and shall contain such information consistent with law as shall be
prescribed by the board of directors. If shares are not represented by
certificates, within a reasonable time following the issue or transfer of such
shares, the corporation shall send the shareholder a complete written statement
of all of the information required to be provided to holders of uncertificated
shares by the Colorado Business Corporation Act.
Section 2. Consideration for Shares. Certificated or uncertificated shares
shall not be issued until the shares represented thereby are fully paid. The
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<PAGE>
board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, "promissory
note" means a negotiable instrument on which there is an obligation to pay
independent of collateral and does not include a non-recourse note.
Section 3. Lost Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may in
its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
Section 4. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and the place designated by the board of
directors.
Except as otherwise expressly provided in Sections 7 and 11 of Article II,
and except for the assertion of dissenters' rights to the extent provided in
Article 113 of the Colorado Business Corporation Act, the corporation shall be
entitled to treat the registered holder of any shares of the corporation as the
owner thereof for all purposes, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or rights
deriving from such shares on the part of any person other than the registered
holder, including without limitation any purchaser, assignee or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
corporation shall have either actual or constructive notice of the claimed
interest of such other person.
Section 5. Transfer Agent, Registrars and Paying Agents. The board may at
its discretion appoint one or more transfer agents, registrars and agents for
making payment upon any class of stock, bond, debenture or other security of the
corporation. Such agents and registrars may be located either within or outside
Colorado. They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
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<PAGE>
ARTICLE VI
Indemnification of Certain Persons
Section 1. Indemnification. For purposes of this Article VI, a "Proper
Person" means any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the fact that he is or was a director, officer, employee,
fiduciary or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, partner, trustee, employee, fiduciary or
agent of any foreign or domestic profit or nonprofit corporation or of any
partnership, joint venture, trust, profit or nonprofit unincorporated
association, limited liability company, or other enterprise or employee benefit
plan. The corporation shall indemnify any Proper Person against reasonably
incurred expenses (including attorneys' fees), judgments, penalties, fines
(including any excise tax assessed with respect to an employee benefit plan) and
amounts paid in settlement reasonably incurred by him in connection with such
action, suit or proceeding if it is determined by the groups set forth in
Section 4 of this Article VI that he conducted himself in good faith and that he
reasonably believed (i) in the case of conduct in his official capacity with the
corporation, that his conduct was in the corporation's best interests, or (ii)
in all other cases (except criminal cases), that his conduct was at least not
opposed to the corporation's best interests, or (iii) in the case of any
criminal proceeding, that he had no reasonable cause to believe his conduct was
unlawful. A Proper Person will be deemed to be acting in his official capacity
while acting as a director, officer, employee or agent on behalf of this
corporation and not while acting on this corporation's behalf for some other
entity.
No indemnification shall be made under this Article VI to a Proper Person
with respect to any claim, issue or matter in connection with a proceeding by or
in the right of a corporation in which the Proper Person was adjudged liable to
the corporation or in connection with any proceeding charging that the Proper
Person derived an improper personal benefit, whether or not involving action in
an official capacity, in which he was adjudged liable on the basis that he
derived an improper personal benefit. Further, indemnification under this
Section 1 in connection with a proceeding brought by or in the right of the
corporation shall be limited to reasonable expenses, including attorneys' fees,
incurred in connection with the proceeding.
Section 2. Right to Indemnification. The corporation shall indemnify any
Proper Person who was wholly successful, on the merits or otherwise, in defense
of any action, suit, or proceeding as to which he was entitled to
indemnification under Section l of this Article VI against expenses (including
attorneys' fees) reasonably incurred by him in connection with the proceeding
without the necessity of any action by the corporation other than the
determination in good faith that the defense has been wholly successful.
Section 3. Effect of Termination of Action. The termination of any action,
suit or proceeding by judgment, order, settlement or conviction, or upon a plea
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<PAGE>
of nolo contendere or its equivalent shall not of itself create a presumption
that the person seeking indemnification did not meet the standards of conduct
described in Section l of this Article VI. Entry of a judgment by consent as
part of a settlement shall not be deemed an adjudication of liability, as
described in Section 2 of this Article VI.
Section 4. Groups Authorized to Make Indemnification Determination. Except
where there is a right to indemnification as set forth in Sections 1 or 2 of
this Article VI or where indemnification is ordered by a court in Section 5 of
this Article VI, any indemnification shall be made by the corporation only as
authorized in the specific case upon a determination by a proper group that
indemnification of the Proper Person is permissible under the circumstances
because he has met the applicable standards of conduct set forth in Section l of
this Article VI. This determination shall be made by the board of directors by a
majority vote of those present at a meeting at which a quorum is present, which
quorum shall consist of directors not parties to the proceeding ("Quorum"). If a
Quorum cannot be obtained, the determination shall be made by a majority vote of
a committee of the board of directors designated by the board, which committee
shall consist of two or more directors not parties to the proceeding, except
that directors who are parties to the proceeding may participate in the
designation of directors for the committee. If a Quorum of the board of
directors cannot be obtained and the committee cannot be established, or even if
a Quorum is obtained or the committee is designated and a majority of the
directors constituting such Quorum or committee so directs, the determination
shall be made by (i) independent legal counsel selected by a vote of the board
of directors or the committee in the manner specified in this Section 4 or, if a
Quorum of the full board of directors cannot be obtained and a committee cannot
be established, by independent legal counsel selected by a majority vote of the
full board (including directors who are parties to the action) or (ii) a vote of
the shareholders.
Section 5. Court-Ordered Indemnification. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article VI, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If the court determines that such Proper Person
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he met the standards of conduct set forth in
Section l of this Article VI or was adjudged liable in the proceeding, the court
may order such indemnification as the court deems proper except that if the
Proper Person has been adjudged liable, indemnification shall be limited to
reasonable expenses incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
Section 6. Advance of Expenses. Reasonable expenses (including attorneys'
fees) incurred in defending an action, suit or proceeding as described in
Section 1 of this Article VI may be paid by the corporation to any Proper Person
in advance of the final disposition of such action, suit or proceeding upon
receipt of (i) a written affirmation of such Proper Person's good faith belief
that he has met the standards of conduct prescribed by Section l of this Article
VI, (ii) a written undertaking, executed personally or on the Proper Person's
- 18 -
<PAGE>
behalf, to repay such advances if it is ultimately determined that he did not
meet the prescribed standards of conduct (the undertaking shall be an unlimited
general obligation of the Proper Person but need not be secured and may be
accepted without reference to financial ability to make repayment), and (iii) a
determination is made by the proper group (as described in Section 4 of this
Article VI) that the facts as then known to the group would not preclude
indemnification. Determination and authorization of payments shall be made in
the same manner specified in Section 4 of this Article VI.
Section 7. Witness Expenses. The sections of this Article VI do not limit
the corporation's authority to pay or reimburse expenses incurred by a director
in connection with an appearance as a witness in a proceeding at a time when he
has not been made a named defendant or respondent in the proceeding.
Section 8. Report to Shareholders. Any indemnification of or advance of
expenses to a director in accordance with this Article VI, if arising out of a
proceeding by or on behalf of the corporation, shall be reported in writing to
the shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII
Provision of Insurance
By action of the board of directors, notwithstanding any interest of the
directors in the action, the corporation may purchase and maintain insurance, in
such scope and amounts as the board of directors deems appropriate, on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the corporation, or who, while a director, officer, employee, fiduciary or agent
of the corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, fiduciary or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
profit or nonprofit unincorporated association, limited liability company or
other enterprise or employee benefit plan, against any liability asserted
against, or incurred by, him in that capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of Article VI or applicable law. Any
such insurance may be procured from any insurance company designated by the
board of directors of the corporation, whether such insurance company is formed
under the laws of Colorado or any other jurisdiction of the United States or
elsewhere, including any insurance company in which the corporation has an
equity interest or any other interest, through stock ownership or otherwise.
- 19 -
<PAGE>
ARTICLE VIII
Miscellaneous
Section 1. Seal. The corporate seal of the corporation shall be circular in
form and shall contain the name of the corporation and the words, "Seal,
Colorado."
Section 2. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
Section 3. Amendments. The board of directors shall have power, to the
maximum extent permitted by the Colorado Business Corporation Act, to make,
amend and repeal the bylaws of the corporation at any regular or special meeting
of the board unless the shareholders, in making, amending or repealing a
particular bylaw, expressly provide that the directors may not amend or repeal
such bylaw. The shareholders also shall have the power to make, amend or repeal
the bylaws of the corporation at any annual meeting or at any special meeting
called for that purpose.
Section 4. Gender. The masculine gender is used in these bylaws as a matter
of convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
Section 5. Conflicts. In the event of any irreconcilable conflict between
these bylaws and either the corporation's articles of incorporation or
applicable law, the latter shall control.
Section 6. Definitions. Except as otherwise specifically provided in these
bylaws, all terms used in these bylaws shall have the same definition as in the
Colorado Business Corporation Act.
- 20 -
AMENDMENT
TO
COMMON STOCK PURCHASE WARRANT
Chaparral Resources, Inc., a Colorado corporation ("Company"), hereby
agrees that effective October 27, 1997, the expiration date of the Common Stock
Purchase Warrant ("Warrant") issued to Victory Ventures LLC, a Delaware limited
liability company with an office at 645 Madison Avenue, New York, New York
10021, that is dated April 22, 1997, is amended to provide that the date of
December 31, 1997, wherever it appears in the Warrant is changed to December 31,
1998.
Victory Ventures LLC hereby agrees that on October 27, 1997, the Warrant
was exercised for a total of 2,307,692 shares of the Company's common stock and
that the Warrant now may be exercised for only the balance of 2,307,693 shares
of the Company's common stock.
The Company represents that there have been no issuances of securities by
the Company that would cause an adjustment pursuant to Section 3 of the Warrant.
Except as stated herein, the Company and Victory Ventures LLC agree that
the Warrant shall remain in full force and effect as originally issued
including, without limitation, the provisions of Section 3 thereof.
Dated as of October 27, 1997.
CHAPARRAL RESOURCES, INC.
By: /s/ Howard Karren
-------------------------------------
Howard Karren, President
VICTORY VENTURES LLC
By: /s/ Walter Carozza
-------------------------------------
Walter A. Carozza
Page 1 of 1
- --------------------------------------------------------------------------------
Attachment to License
series MG # 249 (oil)
dated June 28, 1995
"A p p r o v e d"
by the Prime-Minister of
Republic of Kazakstan
__________ A. S. Yesimov
September "_______", 1997
R E S O L U T I O N #R 97 - U
dated September 11, 1997,
on amendment of license conditions
LICENSE: License series MG #249 (oil) dated 6/28/95.
LICENSEE: Karakudukmunay Inc.
MINISTRY OF ENERGY AND NATURAL RESOURCES OF REPUBLIC OF
KAZAKSTAN, according to the letter of the Department of oil and gas #4 3/219
dated 9/9/97.
Inserts the following amendments to the license conditions:
I. Clause 8.2 of the License shall be amended as follows:
8.2. Minimum work program
8.2.1 Evaluation stage
1. Before 12/31/99 8 new wells with the depth of 3250-3500 m. shall be drilled
and 4 exploration wells worked over. As the protocol of the State Reserves
Committee does not recommend to carry out 3D seismic, it is proposed to solve
this question later, depending on geological results of drilling the first
production wells.
8.2.2 Development stage during the first three years: The development stage for
the period till 12/31/99 shall include the work on developing the field
infrastructure and installing equipment necessary for processing and transfer of
crude oil produced from the 4 worked-over and 8 drilled wells.
The total of financial commitments stipulated in Clauses 8.2.1 and 8.2.2 shall
be:
Before 12/31/1997 - $10,000,000
Before 12/31/1998 - $34,500,000
Before 12/31/1999 - $12,000,000
Minister D. T. Duisenov
(signed and stamped)
The amendments to the license conditions are accepted:
Licensee - Karakudukmunay Inc.
General Director - N. D. Klinchev
- --------------------------------------------------------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 94
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 234
<PP&E> 12,950
<DEPRECIATION> (17)
<TOTAL-ASSETS> 16,488
<CURRENT-LIABILITIES> 1,130
<BONDS> 1,240
0
0
<COMMON> 4,239
<OTHER-SE> 13,706
<TOTAL-LIABILITY-AND-EQUITY> 16,488
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 481
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 59
<INCOME-PRETAX> (481)
<INCOME-TAX> 0
<INCOME-CONTINUING> (481)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (482)
<EPS-PRIMARY> (.011)
<EPS-DILUTED> (.011)
</TABLE>
