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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report: June 1, 1998
EVERGREEN RESOURCES, INC.
---------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 0-10077 84-0834147
- -------- ------- ----------
(State of other juris- Commission (IRS Employer
diction of incorporation) File Number) Identification Number)
1401 17th St., Suite 1200, Denver, Colorado 80202
- ------------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (303) 298-8100.
The Exhibit Index appears on page 4 hereof.
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ITEM 5. OTHER EVENTS
The shareholders of Evergreen Resources, Inc. (the "Company") adopted two
amendments to the Company's Articles of Incorporation at the Company's 1998
Annual Meeting. The amendments are included herein as exhibit 3.1. The
Company's Board at a May 12, 1998 meeting has adopted new bylaws for the Company
which replaced the existing bylaws in its entirety. The new bylaws are included
herein as exhibit 3.2.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF THE BUSINESSES ACQUIRED. Not Applicable
(b) PRO FORMA FINANCIAL INFORMATION. Not Applicable
(c) EXHIBITS.
3.1 Amendments to Articles of Incorporation adopted at the Company 1998
Annual Meeting.
3.2 New bylaws of the Company replacing existing bylaws in their entirety,
adopted May 12, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EVERGREEN RESOURCES, INC.
By: /s/ Kevin Collins
-----------------
June 1, 1998 Kevin Collins
Vice President Finance and
Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
3.1 Amendments to Articles of Incorporation adopted at the Company 1998
Annual Meeting.
3.2 New bylaws of the Company replacing existing bylaws in their entirety,
adopted May 12, 1998.
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EXHIBIT 3.1
ARTICLE XIII
LIMITING OF CERTAIN LIABILITIES OF DIRECTORS AND OFFICERS
13.1 No director shall be personally liable to the corporation or to its
shareholders for momentary damages for breach of fiduciary duty as a
director occurring on or after the date on which this Article XIII
becomes effective; provided, however, that this Article XIII shall not
eliminate or limit the liability of a director to the corporation or
to its shareholders for momentary damages for any breach of the
director's duty of loyalty to the corporation or to its shareholders,
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, acts specified in Section
7-108-403 of the Colorado Revised Statutes (or any successor provision
thereof), or any transaction from which the director or indirectly
derived an improper personal benefit.
13.2 No director or offer shall be personally liable for any injury to
person or property arising out of a tort committed by an employee of
the corporation unless such director or officer was personally
involved in the situation giving rise to the litigation or unless such
director or officer committed a criminal offense in connection with
such situation. The protection afforded in this Section 13.2 shall
not restrict other common-law protections and rights that a director
or officer may have. This Section 13.2 shall not restrict the
corporation's right to eliminate or limit the personal liability of a
director to the corporation or to its shareholders for monetary
damages for breach of fiduciary duty as a director as provided in
Section 13.1.
ARTICLE XVI
RELEVANT FACTORS
The Board of Directors, when evaluating any offer of another party to (a) make a
tender or exchange offer for any equity security of this corporation, (b) merge
or consolidate this corporation with another corporation, or (c) purchase or
otherwise acquire all or substantially all of the properties and assets of this
corporation, shall, in connection with the exercise of its judgment in
determining what is in the best interests of this corporation and its
stockholders, give due consideration to (i) all relevant factors, including
without limitation the social, legal, environmental and economic effects on the
employees, customers, suppliers and other constituencies of this corporation and
its subsidiaries, on the communities and geographical areas in which this
corporation and its subsidiaries operate or are located and on any of the
businesses and properties of this corporation or any of its subsidiaries, as
well as such other factors as the directors deem relevant, and (ii) not only the
consideration being offered, in relation to the then current market price for
the corporation's outstanding shares of capital stock, but also in relation to
the then current value of the corporation in a freely negotiated transaction and
in relation to the board of directors' estimate of the future value of this
corporation (including the unrealized value of its properties and assets) as an
independent going concern.
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BYLAWS OF
EVERGREEN RESOURCES, INC.
Amended and Restated as of May 12, 1998
<TABLE>
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Page
<S> <C>
ARTICLE I.
OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.1 BUSINESS OFFICE. . . . . . . . . . . . . . . . . . . . . 4
Section 1.2 REGISTERED OFFICE. . . . . . . . . . . . . . . . . . . . 4
ARTICLE II.
SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1 ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2 SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 PLACE OF MEETING; CONDUCT OF MEETING . . . . . . . . . . 6
Section 2.4 NOTICE OF MEETING. . . . . . . . . . . . . . . . . . . . 6
Section 2.5 FIXING OF RECORD DATE. . . . . . . . . . . . . . . . . . 8
Section 2.6 SHAREHOLDER LIST . . . . . . . . . . . . . . . . . . . . 9
Section 2.7 QUORUM AND VOTING REQUIREMENTS . . . . . . . . . . . . . 9
Section 2.8 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS. . . . .10
Section 2.9 PROXIES. . . . . . . . . . . . . . . . . . . . . . . . .10
Section 2.10 VOTING OF SHARES; POLLS. . . . . . . . . . . . . . . . .11
Section 2.11 CORPORATION'S ACCEPTANCE OF VOTES. . . . . . . . . . . .11
Section 2.12 INFORMAL ACTION BY SHAREHOLDERS. . . . . . . . . . . . .12
Section 2.13 NOTICE OF SHAREHOLDER NOMINATIONS. . . . . . . . . . . .13
Section 2.14 PROCEDURES FOR SUBMISSION OF SHAREHOLDER PROPOSALS . . .14
Section 2.15 SHAREHOLDERS' RIGHTS TO INSPECT CORPORATE RECORDS. . . .16
Section 2.16 FINANCIAL STATEMENTS SHALL BE FURNISHED TO THE
SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . .17
Section 2.17 DISSENTERS' RIGHTS . . . . . . . . . . . . . . . . . . .18
ARTICLE III.
BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 3.1 GENERAL POWERS . . . . . . . . . . . . . . . . . . . . .18
Section 3.2 NUMBER, TENURE AND QUALIFICATIONS OF DIRECTORS . . . . .18
Section 3.3 REGULAR MEETINGS . . . . . . . . . . . . . . . . . . . .19
Section 3.4 SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . .19
Section 3.5 NOTICE OF SPECIAL MEETING. . . . . . . . . . . . . . . .19
Section 3.6 DIRECTOR QUORUM. . . . . . . . . . . . . . . . . . . . .20
Section 3.7 MANNER OF ACTING . . . . . . . . . . . . . . . . . . . .20
Section 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING
REQUIREMENT . . . . . . . . . . . . . . . . . . . . . .21
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Section 3.9 ACTION WITHOUT A MEETING . . . . . . . . . . . . . . . .21
Section 3.10 REMOVAL OF A DIRECTOR. . . . . . . . . . . . . . . . . .22
Section 3.11 VACANCIES. . . . . . . . . . . . . . . . . . . . . . . .22
Section 3.12 COMPENSATION . . . . . . . . . . . . . . . . . . . . . .23
Section 3.13 COMMITTEES . . . . . . . . . . . . . . . . . . . . . . .23
ARTICLE IV.
OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 4.1 NUMBER . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 4.2 APPOINTMENT AND TERM OF OFFICE . . . . . . . . . . . . .24
Section 4.3 REMOVAL. . . . . . . . . . . . . . . . . . . . . . . . .24
Section 4.4 THE CHIEF EXECUTIVE OFFICER. . . . . . . . . . . . . . .25
Section 4.5 THE PRESIDENT. . . . . . . . . . . . . . . . . . . . . .25
Section 4.6 THE VICE-PRESIDENTS. . . . . . . . . . . . . . . . . . .25
Section 4.7 THE SECRETARY. . . . . . . . . . . . . . . . . . . . . .26
Section 4.8 THE TREASURER. . . . . . . . . . . . . . . . . . . . . .26
Section 4.9 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS . . . . .26
Section 4.10 SALARIES . . . . . . . . . . . . . . . . . . . . . . . .26
ARTICLE V.
INDEMNIFICATION OF DIRECTORS,OFFICERS, AGENTS, AND EMPLOYEES. . . . . .27
Section 5.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . .27
Section 5.2 ADVANCE EXPENSES FOR DIRECTORS AND OFFICERS. . . . . . .27
Section 5.3 OTHER EMPLOYEES AND AGENTS . . . . . . . . . . . . . . .27
Section 5.4 NATURE OF RIGHT TO INDEMNIFICATION . . . . . . . . . . .27
Section 5.5 REQUEST FOR INDEMNIFICATION; DETERMINATION
OF ENTITLEMENT THERETO . . . . . . . . . . . . . . . . .27
Section 5.6 RIGHT OF ACTION; NO PRESUMPTION. . . . . . . . . . . . .28
Section 5.7 BINDING EFFECT ON THE CORPORATION. . . . . . . . . . . .28
Section 5.8 NO CHALLENGE TO VALIDITY . . . . . . . . . . . . . . . .28
Section 5.9 NONEXCLUSIVITY . . . . . . . . . . . . . . . . . . . . .28
Section 5.10 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . .28
Section 5.11 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . .29
Section 5.12 NOTICE TO SHAREHOLDERS OF INDEMNIFICATION. . . . . . . .29
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER. . . . . . . . . . . . . . .29
Section 6.1 CERTIFICATES FOR SHARES. . . . . . . . . . . . . . . . .29
Section 6.2 REGISTRATION OF THE TRANSFER OF SHARES . . . . . . . . .30
Section 6.3 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED . . . . . .30
Section 6.4 ACQUISITION OF SHARES. . . . . . . . . . . . . . . . . .31
ARTICLE VII.
DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
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Section 7.1 DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . .32
ARTICLE VIII.
CORPORATE SEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Section 8.1 CORPORATE SEAL . . . . . . . . . . . . . . . . . . . . .32
ARTICLE IX.
AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Section 9.1 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . .32
</TABLE>
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ARTICLE I.
OFFICES
Section 1.1 BUSINESS OFFICE.
The principal office of the corporation shall be within the State of
Colorado and shall be located at 1512 Larimer Street, Denver, Colorado 80202.
The board of directors may change the location of the principal office. The
corporation shall maintain at its principal office a copy of certain records, as
specified in Section 2.15 of Article II. The corporation may have such other
offices, either within or without the State of Colorado, as the board of
directors may designate or as the business of the corporation may require.
Section 1.2 REGISTERED OFFICE.
The registered office of the corporation, required by Section
7-105-101(1)(a), of the Colorado Business Corporation Act (hereinafter "the
Act") may be, but need not be, identical with the principal office in the State
of Colorado, and the address of the registered office may be changed from time
to time.
ARTICLE II.
SHAREHOLDERS
Section 2.1 ANNUAL MEETING.
The annual meeting of the shareholders shall be held on such date as
may be designated by resolution of the board of directors for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. No other matters may be brought before the meeting by any
shareholder unless written notice of such matters, together with an adequate
description thereof, shall have been provided to the corporation in compliance
with Section 2.13 or Section 2.14.
Section 2.2 SPECIAL MEETINGS.
(a) Special meetings of the shareholders, for any purpose or
purposes, described in the meeting notice (which may be limited to one or more
specific purpose), may be called by the chief executive officer, or by the board
of directors, and shall be called by the chief executive officer at the request
of the holders of not less than one-tenth of all outstanding votes of the
corporation entitled to be cast on any issue at the meeting. Only such business
shall be conducted at a special shareholder meeting as shall have been brought
before such meeting pursuant to the corporation's notice of meeting given in
accordance with Section 2.4.
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(b) In order that any demand or request of a shareholder or
shareholders for a special meeting of shareholders contemplated by Section
2.2(a) be validly and effectively made, such shareholder or shareholders and
such demand or request must comply with the following procedures:
(1) Any shareholder seeking to request or demand, or to have the
shareholders request or demand, a special meeting shall first, by written notice
to the Secretary of the corporation, request the board of directors to fix a
record date, pursuant to Section 2.5 hereof, for the purpose of determining the
shareholders entitled to request the special meeting. The board of directors
shall promptly, but in all events within 10 days after the date upon which such
a request is received, fix such a record date. Every request to fix a record
date for determining the shareholders entitled to request a special meeting
shall be in writing and shall set forth the purpose or purposes for which the
special meeting is requested, the name and address, as they appear in the
corporation's books, of each shareholder making the request and the class and
number of shares of the corporation which are owned of record by each such
shareholder, and shall bear the signature and date of signature of each such
shareholder.
In the event of the delivery to the corporation of any request(s) or
demand(s) by shareholders with respect to a special meeting, and/or any related
revocation or revocations, the corporation shall engage independent inspectors
of elections for the purpose of performing a prompt ministerial review of the
validity of the request(s), demand(s) and/or revocation(s).
(2) No request or demand with respect to calling a special meeting of
shareholders shall constitute a valid and effective shareholder request or
demand for a special meeting (i) unless (A) within 60 days of the record date
established in accordance with Section 2.2(b)(1), written requests or demands
signed by shareholders of record representing a sufficient number of shares as
of such record date to request or demand a special meeting pursuant to Section
2.2(a) are delivered to the Secretary of the corporation and (B) each request or
demand is made in accordance with and contains the information required by
Section 2.14(b)(2) as if such request or demand were a proposal to conduct
business at an annual meeting of the corporation as provided for therein and
(ii) until such date as the independent inspectors engaged in accordance with
this Section 2.2(b)(2) certify to the corporation that the requests or demands
delivered to the corporation in accordance with clause (i) of this Section 2.2
(b)(2) represent at least the minimum number of shares that would be necessary
to request such a meeting pursuant to Section 2.2(a).
(c) If the corporation determines that a shareholder or shareholders
have satisfied the notice, information and other requirements specified in
Section 2.2(b)(2)(i), then the board of directors shall adopt a resolution
calling a special meeting of the shareholders and fixing the record date
therefor for the purpose of determining the shareholders entitled to notice of
and to vote at such special meeting. Notice of such special meeting shall be
provided in accordance with Section 2.4(a), provided that such notice shall be
given within 30 days (or such longer period as from time to time may be
permitted by law) after the date valid and effective request(s) or demand(s) for
such special meeting is (or are) delivered to the corporation in accordance with
Section 2.2(b)(2)(i).
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(d) In fixing a meeting date for the special meeting of shareholders,
the board of directors may consider such factors as it deems relevant within the
good faith exercise of its business judgment, including, without limitation, the
nature of the action proposed to be taken, the facts and circumstances
surrounding the request, and any plan of the board of directors to call a
special or annual meeting of shareholders for the conduct of related business,
provided that such date shall be determined in accordance with Section 2.4(a)
hereof.
(e) Nothing contained in this Section 2.2(b) shall in any way be
construed to suggest or imply that the board of directors or any shareholder
shall not be entitled to contest the validity of any request or demand or
revocation thereof, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect
thereto).
Section 2.3 PLACE OF MEETING; CONDUCT OF MEETING.
The board of directors may designate any place as the place of meeting
for any annual or special meeting of the shareholders, which may be either
within or without the State of Colorado. If no designation is made, the place of
meeting shall be the principal office of the corporation. Every meeting of
shareholders shall be chaired by the Chairman of the board of directors, or, in
the absence thereof, such person as the Chairman of the board of directors shall
appoint, or, in the absence thereof or in the event that the Chairman of the
board of directors shall fail to make such appointment, such person as shall be
appointed by vote of the Nominating Committee of the board of directors, or, in
the absence thereof or in the event that such Committee fails to make such
appointment, any officer of the corporation elected by the board of directors.
Section 2.4 NOTICE OF MEETING.
(a) REQUIRED NOTICE.
Written notice stating the place, day and hour of any annual or
special shareholder meeting shall be delivered not less than ten nor more than
sixty days before the date of the meeting (except that, if the number of
authorized shares is to be increased, at least thirty days' notice shall be
given), either personally or by mail, by or at the direction of the chief
executive officer or the board of directors. Only the chief executive officer or
the board of directors shall have the authority to set the place, day and hour
of any special meeting. Such notice shall be given to each shareholder of record
entitled to vote at such meeting and to any other shareholder entitled by the
Act or the articles of incorporation to receive notice of the meeting.
Notice shall be deemed to be effective at the earlier of: (1) when
deposited in the United States mail, addressed to the shareholder at his address
as it appears on the stock transfer books of the corporation, with postage
thereon prepaid, (2) on the date shown on the return receipt if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee, (3) when received, or (4) 5 days after
deposit in the United States mail, if
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mailed postpaid and correctly addressed, to an address other than that shown in
the corporation's current record of shareholders.
Any previously scheduled meeting of the shareholders may be postponed,
and any special meeting of the shareholders called by the board of directors may
be canceled, by resolution of the board of directors upon public notice given
prior to the date previously scheduled for such meeting of shareholders.
(b) ADJOURNED MEETING.
If any shareholder meeting is adjourned to a different date, time, or
place, notice need not be given of the new date, time or place, if the new date,
time and place is announced at the meeting before adjournment. If a new record
date for the adjourned meeting is, or must be, fixed (see Section 2.5 of this
Article II) then notice must be given pursuant to the requirements of paragraph
(a) of this Section 2.4, to those persons who are shareholders as of the new
record date.
(c) WAIVER OF NOTICE.
The shareholders may waive notice of the meeting (or any notice
required by the Act, articles of incorporation, or bylaws), by a writing signed
by the shareholders entitled to the notice, which is delivered to the
corporation (either before or after the date and time stated in the notice) for
inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the
meeting;
(2) waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
(d) CONTENTS OF NOTICE.
The notice of each special shareholder meeting shall include a
description of the purpose or purposes for which the meeting is called. Except
as provided in this Section 2.4(d), or as provided in the corporation's
articles, or otherwise in the Act, the notice of an annual shareholder meeting
need not include a description of the purpose or purposes for which the meeting
is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange or other disposition
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of all or substantially all of the corporation's property; (4) the adoption,
amendment or repeal of a bylaw; (5) dissolution of the corporation; or, (6)
removal of a director, the notice must so state and be accompanied by
respectively a copy or summary of the: (1) articles of amendment; (2) plan of
merger or share exchange; (3) transaction for disposition of all the
corporation's property; or (4) bylaw proposal. If the proposed corporation
action creates dissenters' rights, the notice must state that shareholders are,
or may be, entitled to assert dissenters' rights, and must be accompanied by a
copy of Article 113 of the Act. If the corporation issues, or authorizes the
issuance of, shares for promissory notes or for promises to render services in
the future, the corporation shall report in writing to all the shareholders the
number of shares authorized or issued, and the consideration received with or
before the notice of the next shareholder meeting. Likewise, if the corporation
indemnifies or advances expenses to a director (pursuant to Article 109 of the
Act) this shall be reported to all the shareholders with or before notice of the
next shareholder's meeting.
Section 2.5 FIXING OF RECORD DATE.
For the purpose of determining shareholders of any voting group
entitled to notice of or to vote at any meeting of shareholders, or shareholders
entitled to receive payment of any distribution or dividend, or in order to make
a determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date. Such record date shall
not be 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 so fixed by the board for the determination of shareholders entitled to
notice of, or to vote at a meeting of shareholders, or shareholders entitled to
receive a share dividend or distribution, the record date for determination of
such shareholders shall be at the close of business on:
(a) With respect to an annual shareholders' meeting or any special
shareholders' meeting called by the board or any person specifically
authorized by the board or these bylaws to call a meeting, the day before
the first notice is delivered to shareholders;
(b) With respect to a special shareholders' meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
board authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting, the
date the first shareholder signs a consent; and
(e) With respect to a distribution to shareholders (other than one
involving purchase or reacquisition of shares), the date the board
authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof unless the
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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.
Section 2.6 SHAREHOLDER LIST.
The officer or agent having charge of the stock transfer books for
shares of the corporation shall make a complete record of the shareholders
entitled to vote at each meeting of shareholders thereof, arranged in
alphabetical order, with the address of and the number of shares of each class
and series held by each. The list must be arranged by voting group, if such
exists, and within each voting group by class or series of shares. The list must
be available for inspection by any shareholder, beginning on 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. The
list shall be available at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held. A
shareholder, his agent or attorney is entitled on written demand to inspect, and
subject to the requirements of Section 2.15 of this Article II, to copy the list
at his expense during regular business hours, and during the period it is
available for inspection. The corporation shall maintain the shareholder list in
written form or in another form capable of conversion into written form within a
reasonable time.
Section 2.7 QUORUM AND VOTING REQUIREMENTS.
(a) GENERAL. Unless the articles of incorporation, a bylaw adopted
pursuant to Section 2.8 of this Article II, or the Act provide otherwise, the
presence at any meeting, in person or by proxy, of the holders of record of a
majority of the shares then issued and outstanding and entitled to vote shall be
necessary and sufficient to constitute a quorum for the transaction of business.
(b) VOTING GROUPS. If the articles of incorporation or the Act
provides for voting by a single voting group on a matter, action on that matter
is taken when voted upon by that voting group. Shares entitled to vote as a
separate voting group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Unless the articles of
incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or
the Act provide otherwise, the presence at any meeting, in person or by proxy,
of the holders of record of a majority of the shares of such separate voting
group then issued and outstanding and entitled to vote shall be necessary and
sufficient to constitute a quorum for the transaction of business.
If the articles of incorporation or the Act provide for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by another
voting group entitled to vote on the matter.
(c) Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of the meeting unless a new record date is or must be set under the
Act for the adjourned meeting. If a quorum exists,
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action on a matter (other than the election of directors) is approved if the
votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the articles of incorporation, a bylaw adopted
pursuant to Section 2.8 of this Article II, or the Act require a greater number
of affirmative votes.
(d) ADJOURNMENT. The Chairman of the meeting or a majority of the
shares represented at the meeting in person or by proxy and entitled to vote
thereat may adjourn the meeting from time to time, whether or not there is a
quorum, unless otherwise proscribed by law. The shareholders present at a duly
called meeting at which a quorum is present, and at any adjournment thereof, may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 2.8 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS.
For purposes of this Section 2.8 a "supermajority" quorum is a
requirement that more than a majority of the votes of the voting group be
present to constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of the affirmative
votes of a voting group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend or delete a bylaw which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the same
quorum requirement and be adopted by the same vote and voting groups required to
take action under the quorum and voting requirement then in effect or proposed
to be adopted, whichever is greater.
A bylaw that fixes a "supermajority" quorum or voting requirement for
shareholders may not be adopted, amended, or repealed by the board of directors.
Section 2.9 PROXIES.
At all meetings of shareholders, a shareholder may vote in person, or
vote by proxy which is executed in writing by the shareholder or which is
executed by his duly authorized attorney-in-fact. Such proxy shall be dated and
filed with the secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. Unless a time of expiration
is otherwise specified, a proxy is valid for eleven months. A proxy is revocable
unless executed in compliance with Section 7-107-203(5) of the Act, or any
succeeding statute of like tenor and effect.
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Section 2.10 VOTING OF SHARES; POLLS.
Unless otherwise provided in the articles of incorporation, each
outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Absent special circumstances, outstanding shares of the corporation
are not entitled to vote if they are owned directly or indirectly by another
corporation in which this corporation owns a majority of the shares entitled to
vote for the election of directors of the other corporation; provided, however,
this provision shall not limit the power of this corporation to vote its own
shares held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote 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.
At any meeting of shareholders, the Chairman of the meeting shall fix
and announce at the meeting the date and time of the opening and closing of the
polls for each matter upon which the shareholders will vote at the meeting.
Section 2.11 CORPORATION'S ACCEPTANCE OF VOTES.
(a) If the name signed on a vote, consent, waiver, or proxy
appointment corresponds to the name of a shareholder, the corporation if acting
in good faith is entitled to accept the vote, consent, waiver, or proxy
appointment and give it effect as the act of the shareholders.
(b) If the name signed on a vote, consent, waiver, or proxy
appointment does not correspond to the name of its shareholder, the corporation
if acting in good faith is nevertheless entitled to accept the vote, consent,
waiver, or proxy appointment and give it effect as the act of the shareholder
if:
(1) the shareholder is an entity as defined in the Act and the name
signed purports to be that of an officer or agent of the entity;
(2) 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, or proxy appointment;
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(3) 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, or proxy
appointment;
(4) 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, or proxy
appointment;
(5) 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-owners and the person signing appears to be
acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment 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.
(d) The corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, or proxy appointment in good faith and in accordance with
the standards of this section are not liable in damages to the shareholder for
the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this section is valid unless a court
of competent jurisdiction determines otherwise.
Section 2.12 INFORMAL ACTION BY SHAREHOLDERS.
Unless, the Articles otherwise require, any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if all shareholders entitled to vote thereon consent to such action in
writing.
No action taken pursuant to this section shall be effective unless the
corporation has received writings that (1) describe and consent to the action,
(2) are signed by all of the shareholders entitled to vote with respect to the
subject matter thereof, (3) are dated by each signatory with the date on which
he signed, and (4) are delivered to the corporation for inclusion in the minute
book.
No written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the earliest dated written
consent received by the corporation, a written consent or consents signed by all
the shareholders entitled to vote on such corporate action are delivered to the
corporation.
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Any such writing may be received by the corporation by electronically
transmitted facsimile or other form of wire or wireless communication providing
the corporation with a complete copy thereof, including a copy of the signature
thereto.
If the act to be taken requires that notice be given to non-voting
shareholders, the corporation shall give the non-voting shareholders written
notice of the proposed action at least 10 days before the action is taken, which
notice shall contain or be accompanied by the same material that would have been
required if a formal meeting had been called to consider the action.
A consent signed under this section has the effect of a meeting vote
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 prior to the date the last writing necessary to effect the
action is received by the corporation.
Action taken pursuant to this section shall be effective as of the
date the corporation receives writings describing and consenting to the action
signed by all of the shareholders entitled to vote with respect to the action,
unless all of the writings specify another date as the effective date of the
action, in which case such other date shall be the effective date of the action.
Section 2.13 NOTICE OF SHAREHOLDER NOMINATIONS.
(a) Only persons who are nominated in accordance with the procedures
set forth in this Section 2.13 shall be eligible for election as directors of
the corporation. Nomination of persons for election to the board of directors of
the corporation may be made at a meeting of shareholders (i) by or at the
direction of the board of directors or (ii) by any shareholder of the
corporation entitled to vote for the election of directors at such meeting who
complies with the procedures set forth in this Section 2.13.
(b) All nominations by shareholders shall be made pursuant to timely
notice in proper written form to the Secretary of the corporation.
(1) To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the corporation not
later than the close of business on the 30th day nor earlier than the close of
business on the 60th day prior to the annual meeting of shareholders at which
directors are to be elected, unless such requirement is expressly waived in
advance of the meeting by formal action of the board of directors. In no event
shall the public announcement of an adjournment of an annual meeting commence a
new time period for the giving of a shareholder's notice as described above. For
purposes of this Section 2.13, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press
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or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(2) To be in proper written form, such shareholder's notice
shall set forth in writing (a) as to each person whom the shareholder proposes
to nominate for election or re-election as a director, all information relating
to such Person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act, including, without limitation, such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected; and (b) as to the shareholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination is made
(i) the name and address, as they appear on the corporation's books, of such
shareholder and such beneficial owner and (ii) the class and number of shares of
the corporation which are owned beneficially and of record by such shareholder
and such beneficial owner.
(c) At the request of the board of directors, any person nominated by
the board of directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee.
(d) In the event that a shareholder seeks to nominate one or more
directors, the Secretary shall appoint two inspectors, who shall not be
affiliated with the corporation, to determine whether a shareholder has complied
with this Section 2.13. If the inspectors shall determine that a shareholder has
not complied with this Section 2.13, the inspectors shall direct the Chairman of
the meeting to declare to the meeting that the nomination was not made in
accordance with the procedures prescribed by the By-Laws of the corporation, and
the Chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 2.13, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this 2.13.
(f) Nothing in this Section 2.13 shall be deemed to affect any rights
of holders of any series of Preferred Stock to elect directors under specified
circumstances.
Section 2.14 PROCEDURES FOR SUBMISSION OF SHAREHOLDER PROPOSALS.
(a) At any annual meeting of the shareholders of the corporation,
only such business shall be conducted as shall have been brought before the
meeting (i) by or at the direction of the board of directors or (ii) by any
shareholder of the corporation entitled to vote for the election of directors at
such meeting who complies with the procedures set forth in this Section 2.14.
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(b) For business properly to be brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the corporation and such other business must
otherwise be a proper matter for shareholder action.
(1) To be timely, a shareholder's notice must be delivered
to or mailed and received at the principal executive offices of the corporation
not later than the close of business on the 60th day nor earlier than the close
of business on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the shareholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the corporation. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a shareholder's notice as described
above. For purposes of this Section 2.14, "Public announcement" shall have the
same meaning as set forth in Section 2.13.
(2) To be in proper written form, a shareholder's notice to
the Secretary shall set forth in writing as to each matter the shareholder
proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and address, as
they appear on the corporation's books, of the shareholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made,
(iii) the class and number of shares of the corporation which are owned
beneficially and of record by the shareholder and such beneficial owner and (iv)
any material interest of the shareholder and such beneficial owner in such
business.
(c) Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.14. The Chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section 2.14, and, if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
(d) Notwithstanding the foregoing provisions of this Section 2.14, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.14. Nothing in this Section 2.14 shall be deemed to
affect any rights of shareholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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Section 2.15 SHAREHOLDERS' RIGHTS TO INSPECT CORPORATE RECORDS.
(a) MINUTES AND ACCOUNTING RECORDS.
The corporation shall keep as permanent records minutes of all
meetings of its shareholders and 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 of
the board of directors. The corporation shall maintain appropriate accounting
records.
(b) ABSOLUTE INSPECTION RIGHTS OF RECORDS REQUIRED AT PRINCIPAL
OFFICE.
If he gives the corporation written notice of his demand at least five
business days before the date on which he wishes to inspect and copy, a
shareholder (or his agent or attorney) has the right to inspect and copy, during
regular business hours, any of the following records, all of which the
corporation is required to keep at its principal office:
(1) its articles or restated articles of incorporation and all
amendments to them currently in effect;
(2) its bylaws or restated bylaws and all amendments to them
currently in effect;
(3) resolutions adopted by its board of directors creating one or
more classes or series of shares, and fixing their relative
rights, preferences, and limitations, if shares issued pursuant
to those resolutions are outstanding;
(4) the minutes of all shareholders' meetings, and records of all
action taken by shareholders without a meeting, for the past 3
years;
(5) all written communications to shareholders generally within the
past three years, including the financial statements furnished
for the past three years to the shareholders;
(6) a list of the names and business addresses of its current
directors and officers;
(7) its most recent corporate report delivered to the Colorado
Secretary of State;
(8) all financial statements prepared for periods ending during the
last three years that a shareholder could have requested under
Section 7-116-105 of the CBCA.
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(c) CONDITIONAL INSPECTION RIGHT.
In addition, if he gives the corporation a written demand made in
good faith and for a proper purpose at least five business days before the date
on which he wishes to inspect and copy, he describes with reasonable
particularity his purpose and the records he desires to inspect, and the records
are directly connected with his purpose (and he otherwise complies with all
requirements of Section 7-116-102(3) of the CBCA (or any successor provision), a
shareholder of a corporation (or his agent or attorney) is entitled to inspect
and copy, during regular business hours at a reasonable location specified by
the corporation, any of the following records of the corporation:
(1) excerpts from minutes of any meeting of the board of directors,
records of any action of a committee of the board of directors on
behalf of the corporation, minutes of any meeting of the
shareholders, records of action taken by the shareholders or
board of directors without a meeting, to the extent not subject
to inspection under paragraph (a) of this Section 2.14, and
waivers of notices of any meeting of the shareholders or the
board of directors or any committee of the board of directors;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than the date of
the shareholder's demand).
(d) COPY COSTS.
The right to copy records includes, if reasonable, the right to
receive copies made by photographic, xerographic, or other means. The
corporation may impose a reasonable charge, covering the costs of labor and
material, for copies of any documents provided to the shareholder. The charge
may not exceed the estimated cost of production or reproduction of the records.
Section 2.16 FINANCIAL STATEMENTS SHALL BE FURNISHED TO THE
SHAREHOLDERS.
(a) The corporation shall furnish its shareholders annual financial
statements, which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of changes in shareholders' equity for the year unless that
information appears elsewhere in the financial statements. If financial
statements are prepared for the corporation on the basis of generally accepted
accounting principles, the annual financial statements for the shareholders also
must be prepared on that basis.
(b) If the annual financial statements are reported upon by a public
accountant, his report must accompany them. If not, the statements must be
accompanied by a statement of the chief executive officer or the person
responsible for the corporation's accounting records:
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(1) stating his reasonable belief whether the statements were
prepared on the basis of generally accepted accounting principles
and, if not, describing the basis of preparation; and
(2) describing any respects in which the statements were not prepared
on a basis of accounting consistent with the statements prepared
for the preceding year.
(c) A corporation shall mail the annual financial statements to each
shareholder within 120 days after the close of each fiscal year. Thereafter, on
written request from a shareholder who was not mailed the statements, the
corporation shall mail him the latest financial statements.
Section 2.17 DISSENTERS' RIGHTS.
Each shareholder shall have the right to dissent from, and obtain
payment for, his shares when so authorized by the Act, articles of
incorporation, these bylaws, or in a resolution of the board of directors.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1 GENERAL POWERS.
Unless the articles of incorporation have dispensed with or limited
the authority of the board of directors by describing who will perform some or
all of the duties of a board of directors, 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, the board of directors.
Section 3.2 NUMBER, TENURE AND QUALIFICATIONS OF DIRECTORS.
The number of directors of the corporation shall be the number
designated by the directors, but not less than six persons (or other number as
may be set forth from time to time in the corporation's articles of
incorporation). The number of directors may be increased or decreased by action
of the board or shareholders at any board meeting or annual meeting of
shareholders, subject only to any limitations set forth in the corporation's
articles of incorporation or the Act. Each director shall hold office until the
next annual meeting of shareholders (or, if the corporation's articles of
incorporation provide for a staggered board, then until his term expires) or
until removed. However, if his term expires, he shall continue to serve until
his successor shall have been elected and qualified or until there is a decrease
in the number of directors. Directors need not be residents of the State of
Colorado or shareholders of the corporation unless so required by the articles
of incorporation. The board of directors may, from time to time, elect one or
more persons as Director Emeritus in recognition of that person's previous
service to the corporation. An Emeritus Director shall serve at the pleasure of
the board and shall be entitled to attend meetings of the directors and
participate
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in the discussions and deliberations of the board of the directors, but shall
not be considered in determining a quorum or vote on any matter before the board
of the directors.
Section 3.3 REGULAR MEETINGS.
Unless expressly determined otherwise by resolution, a regular meeting
of the board of directors shall be held without other notice than this bylaw
immediately before or after, and at the same place as, the annual meeting of
shareholders. The board of directors may provide, by resolution, the time and
place for the holding of additional regular meetings without other notice than
such resolution.
Section 3.4 SPECIAL MEETINGS.
Unless otherwise provided in the articles, special meetings of the
board of directors may be called by or at the request of the chairman of the
board, the chief executive officer or a majority of the board of directors. The
person authorized to call special meetings of the board of directors may fix any
place as the place for holding any special meeting of the board of directors.
Section 3.5 NOTICE OF SPECIAL MEETING.
Notice of any special meeting of directors shall be given to each
director at his business or residence in writing by hand delivery, first-class
or overnight mail or courier service, telegram or facsimile or similar
transmission, or orally by telephone. If mailed by first-class mail, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least 72 hours before such
meeting. If by telegram, overnight mail or courier service, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by facsimile or
similar transmission, such notice shall be deemed adequately delivered when the
notice is transmitted at least twenty-four (24) hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twenty-four
(24) hours prior to the time set for the meeting. Any director may waive notice
of any meeting. Except as provided in the next sentence, the waiver must be in
writing, signed by the director entitled to the notice, and filed with the
minutes or corporate records. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
and at the beginning of the meeting (or promptly upon his arrival) objects to
holding the meeting or transacting business at the meeting, and does not
thereafter vote for or assent to action taken at the meeting.
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Section 3.6 DIRECTOR QUORUM.
A majority of the number of directors in office immediately before the
meeting begins shall constitute a quorum for the transaction of business at any
meeting of the board of directors. Any amendment to this quorum requirement is
subject to the provisions of Section 3.8 of this Article III.
Section 3.7 MANNER OF ACTING.
(a) REQUIRED VOTE.
The act of the majority of the directors present at a meeting at which
a quorum is present when the vote is taken shall be the act of the board of
directors unless the articles of incorporation require a greater percentage. Any
amendment which changes the number of directors needed to take action, is
subject to the provisions of Section 3.8 of this Article III.
(b) TELEPHONE MEETING.
Any or all directors may participate in a regular or special meeting
by, or conduct the meeting through the use of, any means of communication by
which all directors participating may simultaneously hear each other during the
meeting. A director participating in a meeting by this means is deemed to be
present in person at the meeting.
(c) FAILURE TO OBJECT TO ACTION.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless:
(1) the director objects at the beginning of the meeting (or promptly
upon his arrival) to holding it or transacting business at the
meeting and thereafter does not vote for or assent to the action
taken at the meeting;
(2) if special notice was required of a particular purpose pursuant
to Section 7-108-203(2), the director objects to transacting
business with respect to the purpose for which such special
notice was required and does not thereafter vote for or assent to
action taken at the meeting with respect to such purpose;
(3) 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
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(4) 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. Any such writing may be received by the corporation by
electronically transmitted facsimile or other form of wire or
wireless communication providing the corporation with a complete
copy thereof, including a copy of the signature thereto.
Section 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING
REQUIREMENT.
For purposes of this Section 3.8, a "supermajority" quorum is a
requirement that more than a majority of the directors in office constitute a
quorum; and a "supermajority" voting requirement is any requirement that
requires the vote of more than a majority of those directors present at a
meeting at which a quorum is present to be the act of the directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders);
(2) if originally adopted by the board of directors, either by the
shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that forms a
supermajority quorum or supermajority voting requirement for the board of
directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the
board of directors to adopt, amend, or repeal a bylaw that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 ACTION WITHOUT A MEETING.
Action required or permitted by the Act to be taken at a board of
directors' meeting may be taken without a meeting if the action is assented to
by all members of the board.
The action may be evidenced by one or more written consents describing
the action taken, signed by each director, and included in the minutes or filed
with the corporate records reflecting the action taken. Action evidenced by
written consents under this section is effective when the last director signs
the consent, unless the consent specifies a different effective date. A consent
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signed under this section has the effect of a meeting vote and may be described
as such in any document.
Section 3.10 REMOVAL OF A DIRECTOR.
The shareholders may remove one or more directors at a meeting called
for that purpose if notice has been given that a purpose of the meeting is such
removal. The removal may be with or without cause, unless provided otherwise in
the articles of incorporation, and any removal shall be subject to any voting
requirement set forth in the articles of incorporation. If a director is elected
by a voting group of shareholders, only the shareholders of that voting group
may participate in the vote to remove him. A director may be removed for cause
only if the number of votes cast to remove him exceeds the number of votes cast
not to remove him. If cumulative voting is in effect, a director may not be
removed if the number of votes sufficient to reelect the director under
cumulative voting is voted against such removal.
Section 3.11 VACANCIES.
Unless the articles of incorporation provide otherwise, if a vacancy
occurs on a board of directors, including a vacancy resulting from an increase
in the number of directors, the shareholders may fill the vacancy. During such
time that the shareholders fail or are unable to fill such vacancies then and
until the shareholders act:
(a) the board of directors may fill the vacancy; or
(b) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting group
of shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders. If one or more of
the remaining directors were elected by the same voting group, only such
directors are entitled to vote by majority vote to temporarily fill the vacancy
as described above in this section.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualifies
or until there is a decrease in the number of directors.
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Section 3.12 COMPENSATION.
Unless otherwise provided in the articles, by resolution of the board
of directors, each director may be paid his expenses, if any, of attendance at
each meeting of the board of directors, and may be paid a stated salary (in cash
or other consideration) as director or a fixed sum for attendance at each
meeting of the board of directors or both. No such payment shall preclude any
director from serving the corporation in any capacity and receiving compensation
therefor. Unless otherwise provided in the articles of incorporation, the board
of directors shall fix the compensation of directors.
Section 3.13 COMMITTEES.
(a) CREATION OF COMMITTEES.
Unless the articles of incorporation provide otherwise, the board of
directors may create one or more committees and appoint members of the board of
directors to serve on them or the chief executive officer, if so delegated by
the board, may appoint members to serve on committees created by the board. Each
committee must have two or more members, who serve at the pleasure of the board
of directors.
(b) SELECTION OF MEMBERS.
The creation of a committee and appointment of members to it must be
approved by the greater of (1) a majority of all the directors in office when
the action is taken or (2) the number of directors required by the articles of
incorporation to take such action (or, if not specified in the articles, the
numbers required by Section 3.7 of this Article III to take action).
(c) REQUIRED PROCEDURES.
Sections 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of this Article III, which
govern meetings, action without meetings, notice and waiver of notice, quorum
and voting requirements of the board of directors, apply to committees and their
members.
(d) AUTHORITY.
Unless limited by the articles of incorporation, each committee may
exercise those aspects of the authority of the board of directors which the
board of directors confers upon such committee in the resolution creating the
committee. Provided, however, a committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the Act requires
be approved by shareholders;
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(3) fill vacancies on the board of directors or on any of its
committees;
(4) amend the articles of incorporation pursuant to the authority of
directors;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the board of directors; or
(8) authorize or approve the issuance or sale or contract for sale of
shares or determine the designation and relative rights,
preferences, and limitations of a class or series of shares,
except that the board of directors may authorize a committee (or
a senior executive officer of the corporation) to do so within
limits specifically prescribed by the board of directors.
ARTICLE IV.
OFFICERS
Section 4.1 NUMBER.
The officers of the corporation shall be a chief executive officer, a
president, a secretary, and a treasurer, each of whom shall be appointed by the
board of directors. Such other officers and assistant officers as may be deemed
necessary, including any vice-presidents, may be appointed by the board of
directors. If specifically authorized by the board of directors, an officer may
appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the corporation.
Section 4.2 APPOINTMENT AND TERM OF OFFICE.
The officers of the corporation shall be appointed by the board of
directors for a term as determined by the board of directors. (The designation
of a specified term grants to the officer no contract rights, and the board can
remove the officer at any time prior to the termination of such term.) If no
term is specified, they shall hold office until they resign or die, or until
they are removed in the manner provided in Section 4.3 of this Article IV.
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Section 4.3 REMOVAL.
Unless appointed by the shareholders, any officer or agent may be
removed by the board of directors at any time, with or without cause. Any
officer or agent appointed by the shareholders may be removed by the
shareholders with or without cause. Such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Appointment of an officer
or agent shall not of itself create contract rights.
Section 4.4 THE CHIEF EXECUTIVE OFFICER
The chief executive officer shall be the principal executive officer
of the corporation and, subject to the control of the board of directors, shall
in general supervise and control all of the business and affairs of the
corporation. He shall, when present, preside at all meetings of the shareholders
and of the board of directors, unless a Chairman of the board of directors shall
have been designated by the board. He may sign, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
Section 4.5 THE PRESIDENT.
If appointed, in the absence of the chief executive officer or in the
event of his death, inability or refusal to act, the president shall perform the
duties of the chief executive officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the chief executive
officer. He may sign, with the secretary or any other proper officer of the
corporation thereunto authorized by the board of directors, certificates for
shares of the corporation and deeds, mortgages, bonds, contracts or other
instruments which the board of directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the board of directors or by these bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed to him by the chief executive officer or by
the board of directors.
Section 4.6 THE VICE-PRESIDENTS.
If appointed, in the absence of the president or in the event of his
death, inability or refusal to act, the vice president (or, in the event there
be more than one vice-president, the vice-presidents in the order designated at
the time of their election, or in the absence of any designation, then in the
order of their appointment) shall perform the duties of the president, and when
so acting,
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shall have all the powers of and be subject to all the restrictions upon the
president. (If there is no vice-president, then the treasurer shall perform such
duties of the president.) Any vice-president may sign, with the secretary or an
assistant secretary, certificates for shares of the corporation the issuance of
which have been authorized by resolution of the board of directors; and shall
perform such other duties as from time to time may be assigned to him by the
president or by the board of directors.
Section 4.7 THE SECRETARY.
The secretary shall: (a) keep the minutes of the proceedings of the
shareholders and of the board of directors in one or more books provided for
that purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law; (c) be custodian of the
corporate records and of any seal of the corporation and if there is a seal of
the corporation, see that it is affixed to all documents the execution of which
on behalf of the corporation under its seal is duly authorized; (d) when
requested or required, authenticate any records of the corporation; (e) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (f) sign with the president, or a
vice-president, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the board of directors; (g)
have general charge of the stock transfer books of the corporation; and (h) 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.
Section 4.8 THE TREASURER.
The treasurer shall: (a) have charge and custody of and be responsible
for all funds and securities of the corporation; (b) receive and give receipts
for moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositories as shall be selected by the board of directors
and (c) in general perform all of the duties incident to the office of treasurer
and such duties as from time to time may be assigned to him by the president or
by the board of directors. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the board of directors shall determine.
Section 4.9 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The assistant secretaries, when authorized by the board of directors,
may sign with the president or a vice-president certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the board of directors. The assistant treasurers shall respectively, if required
by the board of directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the board of directors shall determine.
The assistant secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the secretary or the treasurer,
respectively, or by the president or the board of directors.
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Section 4.10 SALARIES.
The salaries of the officers shall be fixed from time to time by the
board of directors.
ARTICLE V.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The corporation shall indemnify any individual made a party to a
proceeding because he is or was a director or officer of the corporation against
liability incurred in the proceeding to the fullest extent permitted by law.
Section 5.2 ADVANCE EXPENSES FOR DIRECTORS AND OFFICERS.
The corporation shall pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding to the fullest extent permitted by law.
Section 5.3 OTHER EMPLOYEES AND AGENTS. In addition to any
indemnification required by law, the corporation may, to the extent authorized
from time to time by the board of directors, grant rights to indemnification,
and rights to be paid by the corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent of the
corporation to the fullest extent of the provisions of this By-Law with respect
to the indemnification and advancement of expenses of directors and officers of
the corporation.
Section 5.4 NATURE OF RIGHT TO INDEMNIFICATION. The right to
indemnification conferred in this By-Law shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the corporation within 30 days after the receipt by the
corporation of a statement or statements from the claimant requesting such
advances from time to time; provided, however, that the payment of such
expenses, incurred by a person to whom indemnification is or may be available
under this By-Law, in advance of the final disposition of a proceeding shall be
made only pursuant to Section 33-8-530 of the Act, or such successor provision
as may be in effect from time to time.
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Section 5.5 REQUEST FOR INDEMNIFICATION; DETERMINATION OF
ENTITLEMENT THERETO. To obtain indemnification under this By-Law, a claimant
shall submit to the corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 5.5, a
determination with respect to the claimant's entitlement thereto shall be made
in accordance with the Act. If it is so determined that the claimant is entitled
to indemnification, payment to the claimant shall be made within 10 days after
such determination.
Section 5.6 RIGHT OF ACTION; NO PRESUMPTION. If a claim under
Section 5.1, 5.2 or 5.3 of this By-Law is not paid in full by the corporation
within thirty days after a written claim pursuant to Section 5.5 of this By-Law
has been received by the corporation, the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim to the extent permitted by law.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the requirements of Section 7-109-104 of the Act, or
any successor provision thereto that may be in effect from time to time, have
been complied with) that the claimant has not met the standard of conduct which
makes it permissible under the Act for the corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, special counsel or shareholders) to have made a determination prior
to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Act, nor an actual determination by the corporation
(including its board of directors, special counsel or shareholders) that the
claimant has not met such applicable standard of conduct, shall create a
presumption that the claimant has not met the applicable standard of conduct.
Section 5.7 BINDING EFFECT ON THE CORPORATION. If a determination
shall have been made pursuant to Section 5.5 of this By-Law that the claimant is
entitled to indemnification, the corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to Section 5.6 of
this By-Law.
Section 5.8 NO CHALLENGE TO VALIDITY. The corporation shall be
precluded from asserting in any judicial proceeding commenced pursuant to
Section 5.6 of this By-Law that the procedures and presumptions of this By-Law
are not valid, binding and enforceable and shall stipulate in such proceeding
that the corporation is bound by all the provisions of this By-Law.
Section 5.9 NONEXCLUSIVITY. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this By-Law shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the articles of incorporation, By-Laws, agreement, vote of shareholders or
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directors or otherwise. No repeal or modification of this By-Law shall in any
way diminish or adversely affect the rights of any director, officer, employee
or agent of the corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
Section 5.10 SEVERABILITY. If any provision or provisions of this
By-Law shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (1) the validity, legality and enforceability of the remaining
provisions of this By-Law (including, without limitation, each portion of any
Section of this By-Law containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to
the fullest extent possible, the provisions of this By-Law (including, without
limitation, each such portion of any Section of this By-Law containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
Section 5.11 NOTICES. Any notice, request or other communication
required or permitted to be given to the corporation under this By-Law shall be
in writing and either delivered in person or sent by telecopy, telex, telegram,
overnight mail or courier service, or certified or registered mail, postage
prepaid, return receipt requested, to the Secretary of the corporation and shall
be effective only upon receipt by the Secretary.
Section 5.12 NOTICE TO SHAREHOLDERS OF INDEMNIFICATION. If the
corporation indemnifies or advances expenses to a director under this article in
connection with a proceeding by or in the right of the corporation, the
corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 CERTIFICATES FOR SHARES.
(a) CONTENT.
Certificates representing shares of the corporation shall at minimum, state on
their face the name of the issuing corporation and that it is formed under the
laws of Colorado; the name of the person to whom issued; and the number and
class of shares and the designation of the series, if any, the certificate
represents; and be in such form as determined by the board of directors. Such
certificates shall be signed (either manually or by facsimile) by the chief
executive officer, president or a vice-president and by the secretary or an
assistant secretary and may be sealed with a corporate seal or
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a facsimile thereof. Each certificate for shares shall be consecutively numbered
or otherwise identified.
(b) LEGEND AS TO CLASS OR SERIES.
If the corporation is authorized to issue different classes of shares
or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
(c) SHAREHOLDER LIST.
The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation.
(d) TRANSFERRING SHARES.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former certificate for
a like number of shares shall have been surrendered and canceled, except that in
case of a lost, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the corporation as the board of
directors may prescribe.
Section 6.2 REGISTRATION OF THE TRANSFER OF SHARES.
Registration of the transfer of shares of the corporation shall be
made only on the stock transfer books of the corporation. In order to register a
transfer, the record owner shall surrender the shares to the corporation for
cancellation, properly endorsed by the appropriate person or persons with
reasonable assurances that the endorsements are genuine and effective. Subject
to the provisions of Section 7-107-301 of the Act (relating to shares held in a
voting trust), and unless the corporation has established a procedure by which a
beneficial owner of shares held by a nominee is to be recognized by the
corporation as the owner, the person in whose name shares stand on the books of
the corporation shall be deemed by the corporation to be the owner thereof for
all purposes.
Section 6.3 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED.
The board of directors (or shareholders) may impose restrictions on
the transfer or registration of transfer of shares (including any security
convertible into, or carrying a right to subscribe for or acquire shares). A
restriction does not affect shares issued before the restriction was
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adopted unless the holders of the shares are parties to the restriction
agreement or voted in favor of the restriction.
A restriction on the transfer or registration of transfer of shares
may be authorized:
(a) to maintain the corporation's status when it is dependent on the
number or identity of its shareholders;
(b) to preserve entitlements, benefits or exemptions under federal or
state securities law;
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares
may:
(a) obligate the shareholder first to offer the corporation or other
persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted
shares;
(c) require the corporation, the holders or any class of its shares,
or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable;
(d) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this section and its existence is noted
conspicuously on the front or back of the certificate. Unless so noted, a
restriction is not enforceable against a person without knowledge of the
restriction.
Section 6.4 ACQUISITION OF SHARES.
The corporation may acquire its own shares and unless otherwise
provided in the articles of incorporation, the shares so acquired constitute
authorized but unissued shares.
If the articles of incorporation prohibit the reissue of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired, effective upon amendment of the articles of incorporation, which
amendment shall be adopted by the shareholders or the board of
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directors without shareholder action. The article of amendment must be delivered
to the Secretary of State and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized by
class and series; and
(c) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares.
ARTICLE VII.
DISTRIBUTIONS
Section 7.1 DISTRIBUTIONS.
The board of directors may authorize, and the corporation may make,
distributions (including dividends on its outstanding shares) in the manner and
upon the terms and conditions provided by applicable law and in the
corporation's articles of incorporation.
ARTICLE VIII.
CORPORATE SEAL
Section 8.1 CORPORATE SEAL.
The board of directors may provide a corporate seal which may be
circular in form and have inscribed thereon any designation including the name
of the corporation, Colorado as the state of incorporation, and the words
"Corporate Seal."
ARTICLE IX.
AMENDMENTS
Section 9.1 AMENDMENTS.
The corporation's board of directors may amend or repeal any of the
corporation's bylaws unless:
(a) the articles of incorporation or the Act reserve this power
exclusively to the shareholders in whole or in part; or
(b) the shareholders in adopting, amending, or repealing a particular
bylaw provide expressly that the board of directors may not amend
or repeal that bylaw; or
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(c) the bylaw either establishes, amends, or deletes, a supermajority
shareholder quorum or voting requirement (as defined in Section
2.8 of Article II).
Notwithstanding the foregoing, no amendments may be made to the
corporation's bylaws by the board of directors unless such amendments are
proposed at a meeting of the board of directors prior to the meeting at which
such amendments are adopted.
Any amendment which changes the voting or quorum requirement for the
board must comply with Article III Section 3.8, and for the shareholders, must
comply with Article II Section 2.8.
The corporation's shareholders may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its board of
directors. Any notice of a meeting of shareholders at which bylaws are to be
adopted, amended, or repealed shall state that the purpose, or one of the
purposes, of the meeting is to consider the adoption, amendment or repeal of
bylaws and contain or be accompanied by a copy or summary of the proposal.
Amended and Restated as of May 12, 1998
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