Exhibit 3.2
AMENDED AND RESTATED BYLAWS OF
PEACOCK FINANCIAL CORPORATION
(formerly known as Connectivity and Technologies, Inc.)
a Colorado corporation
ARTICLE I
OFFICES
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Section 1.1 PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of the Corporation is hereby fixed and located at: 1600 E. Florida Avenue, Suite
306, Hemet, California 92544 ("Principal Executive Office"). The Board of
Directors is hereby granted full power and authority to change said Principal
Executive Office from one location to another.
Section 1.2 OTHER OFFICES. Other business offices may at any time be
established by the Board of Directors or the President at any place or places
where the Corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
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Section 2.1 PLACE OF MEETINGS. All annual or other meetings of
shareholders shall be held at the Principal Executive Office of the Corporation,
or at any other place within or without the State of Colorado which may be
designated either by the Board of Directors or by the written consent of all
persons entitled to vote thereat and not present at the meeting, given either
before or after the meeting and filed with the Secretary of the Corporation.
Section 2.2 ANNUAL MEETINGS. The annual meetings of shareholders shall
be held at such date and time as shall be designated from time to time by the
Board of Directors or by the shareholders in accordance with these bylaws. At
such meetings, directors shall be elected, reports of the affairs of the
Corporation shall be considered, and any other business may be transacted which
is within the powers of the shareholders. Notice of annual meetings of
shareholders shall be given as follows:
2.2.1 Written notice of each annual meeting shall be given to
each shareholder entitled to vote, either personally or by first-class
mail or other means of written communication, charges prepaid,
addressed to such shareholder at his or her address appearing on the
books of the Corporation or given by him or her to the Corporation for
the purpose of notice. If any notice or report addressed to the
shareholder at the address of such shareholder appearing on the books
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of the Corporation is returned to the Corporation by the United States
Postal Service marked to indicate that the United States Postal Service
is unable to deliver the notice or report to the shareholder at such
address, all future notices or reports shall be deemed to have been
duly given without further mailing if the same shall be available for
the shareholder upon written demand of the shareholder at the Principal
Executive Office of the Corporation for a period of one year from the
date of the giving of the notice or report to all other shareholders.
If a shareholder gives no address, notice shall be deemed to have been
given him if sent by mail or other means of written communication
addressed to the place where the Principal Executive Office of the
Corporation is situated, or if published at least once in some
newspaper of general circulation in the county in which said Principal
Executive Office is located.
2.2.2 All such notices shall be given to each shareholder
entitled thereto not less than ten (10) days nor more than sixty (60)
days before each annual meeting. Any such notice shall be deemed to
have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication. An affidavit
of mailing of any such notice in accordance with the foregoing
provisions, executed by the Secretary, Assistant Secretary or any
transfer agent of the Corporation shall be PRIMA FACIE evidence of the
giving of the notice.
2.2.3 Such notice shall specify:
(a) the place, the date, and the hour of such
meeting;
(b) those matters which the Board, at the time of the
mailing of the notice, intends to present for action by the
shareholders;
(c) if directors are to be elected, the names of
nominees intended at the time of the notice to be presented by
the Board for election;
(d) the general nature of a proposal, if any, to take
action with respect to approval of (i) a contract or other
transaction with an interested director, (ii) amendment of the
Articles of Incorporation, (iii) a reorganization of the
Corporation, (iv) voluntary dissolution of the Corporation, or
(v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly
required by statute.
Section 2.3 SPECIAL MEETINGS. Special meetings of the shareholders, for
the purpose of taking any action permitted by the shareholders under Colorado
law and the Articles of Incorporation of this Corporation, may be called at any
time by the Chairman of the Board or the President, or by the Board of
Directors, or by one or more shareholders holding not less than ten percent
(10%) of the votes at the meeting. Upon request in writing that a special
meeting of shareholders be called for any proper purpose, directed to the
Chairman of the Board, President, Vice President or Secretary by any person
(other than the Board) entitled to call a special meeting of shareholders, the
officer forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
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days after receipt of the request. Except in special cases where other express
provision is made by statute, notice of such special meetings shall be given in
the same manner as for annual meetings of shareholders. In addition to the
matters required by items (a) and, if applicable, (c) of Section 2.2, notice of
any special meeting shall specify the general nature of the business to be
transacted, and no other business may be transacted at such meeting.
Section 2.4 QUORUM. The presence in person or by proxy of the persons
entitled to vote a majority of the voting shares at any meeting shall constitute
a quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
Section 2.5 ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy, but in the absence of a
quorum no other business may be transacted at such meeting, except as provided
in Section 2.4.
Section 2.6 VOTING. At all meetings of shareholders, every shareholder
entitled to vote shall have the right to vote in person or by proxy the number
of shares standing in the name of such shareholder on the stock records of the
Corporation on the record date for such meeting. Shares held by an
administrator, executor, guardian, conservator, custodian, trustee, receiver,
pledgee, minor, corporation or fiduciary or held by this Corporation or a
subsidiary of this Corporation in a fiduciary capacity or by two or more persons
shall be voted in accordance with applicable Colorado law. Shares of this
Corporation owned by this Corporation or a subsidiary (except shares held in a
fiduciary capacity) shall not be entitled to vote. Unless a record date for
voting purposes be fixed as provided in Section 6.1 of these Bylaws then only
person in whose names shares entitled to vote stand on the stock records of the
Corporation at the close of business on the business day next preceding the day
on which notice of the meeting is given or if such notice is waived, at the
close of business on the business day next preceding the day on which the
meeting of shareholders if held, shall be entitled to vote at such meeting, and
such day shall be the record date for such meeting. Such vote may be by voice or
by ballot; provided, however, that all elections for directors must be by ballot
upon demand made by a shareholder at any election and before the voting begins.
Except with respect to election of directors as provided below, the affirmative
vote on any matter by a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by applicable Colorado law. Subject to the requirements of the next
sentence, every shareholder entitled to vote at any election for directors shall
have the right to cumulate his votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of votes
to which his shares are entitled, or to distribute his votes on the same
principle among as many candidates as he shall think fit. No shareholder shall
be entitled to cumulative votes unless the name of the candidate or candidates
for whom such votes would be cast has been placed in nomination prior to the
voting and any shareholder has given notice at the meeting prior to the voting,
of such shareholder's intention to cumulate his votes. The candidates receiving
the highest number of affirmative votes of shares entitled to be voted for them,
up to the number of directors to be elected, shall be elected; votes against the
candidate and votes withheld shall have no effect.
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Section 2.7 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
proceedings and transactions of any meeting of shareholders, either annual or
special, however called and noticed and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum be
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of such
meeting, or an approval of the minutes thereof. Attendance of a person at a
meeting shall constitute a waiver of notice of and presence at such meeting,
except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by law or these Bylaws to be
included in the notice but not so included, if such objection is expressly made
at the meeting, provided, however, that any person making such objection at the
beginning of the meeting or to the consideration of matters required to be but
not included in the notice may orally withdraw such objection at the meeting or
thereafter waive such objection by signing a written waiver thereof or a consent
to the holding of the meeting or the meetings. Neither the business to be
transacted at nor the purpose of any annual or special meeting of shareholders
need be specified in any written waiver of notice, consent to the holding of the
meeting or approval of the minutes thereof except that the general nature of the
proposals specified in subsection (d) of Section 2.2 shall be so stated. All
such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 2.8 ACTION WITHOUT MEETING. Shareholders may take action
without a meeting as follows:
2.8.1 Directors may be elected without a meeting by consent in
writing, setting forth the action so taken, signed by all of the
persons who would be entitled to vote for the election of directors,
provided that, without notice except as hereinafter set forth, a
director may be elected at any time to fill a vacancy not filled by the
directors, other than to fill a vacancy created by removal, by the
written consent of persons holding a majority of the outstanding shares
entitled to vote for the election of directors.
2.8.2 Any other action which, under any provision of Colorado
law may be taken at a meeting of the shareholders, may be taken without
a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by the
holders of outstanding shares having not less than the minimum number
of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and
voted. Unless the consents of all shareholders entitled to vote have
been solicited in writing, the following shall apply:
(a) Notice of any proposed shareholder approval of,
(i) a contract or other transaction with an interested
director, (ii) indemnification of an agent of the Corporation
as authorized by Section 3.16 of these Bylaws, (iii) a
reorganization of the Corporation, or (iv) a distribution in
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dissolution other than in accordance with the rights of
outstanding preferred shares, if any, without a meeting by
less than unanimous written consent, shall be given at least
ten (10) days before the consummation of the action authorized
by such approval; and
(b) Prompt notice shall be given of the taking of any
other corporate action approved by shareholders without a
meeting by less than unanimous written consent, to those
shareholders entitled to vote who have not consented in
writing. Such notices shall be given in the manner and shall
be deemed to have been given as provided in Section 2.2 of
these Bylaws.
2.8.3 Unless, as provided in Section 6.1 of these Bylaws, the
Board of Directors has fixed a record date for the determination of
shareholders entitled to notice of and to give such written consent,
the record date for such determination shall be the day on which the
first written consent is given. All such written consents shall be
filed with the Secretary of the Corporation.
2.8.4 Any shareholder that has given a written consent, or the
shareholder's proxy holders, or a transferee of the shares of a
personal representative of the shareholder or their respective proxy
holders, may revoke the consent by a writing received by the
Corporation prior to the time that written consents of the number of
shares required to authorize the proposed action have been filed with
the Secretary of the Corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the
Corporation.
Section 2.9 PROXIES. Every person entitled to vote or execute consents
shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or the duly authorized
agent of such person and filed with the Secretary of the Corporation, or the
persons appointed as inspectors of election or such other persons as may be
designated by the Board of Directors or the President to receive proxies;
provided that no such proxy shall be valid after the expiration of eleven (11)
months from the date of its execution, unless the person executing it specifies
therein the length of time for which such proxy is to continue in force. Every
proxy duly executing continues in full force and effect until revoked by the
person executing it prior to the vote pursuant thereto. Except as otherwise
provided by law, such revocation may be effected as to any meeting by attendance
at such meeting and voting in person by the person executing the proxy or by a
writing stating that the proxy is revoked or by a proxy bearing a later date
executed by the person executing the prior proxy and presented to the meeting or
filed with the Secretary of the Corporation or the persons appointed as
inspectors of election or such other persons as may be designated by the Board
of Directors or the President to receive proxies.
Section 2.10 INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election be not so appointed, the chairman of any such
meeting may, and on the request of any shareholder or his proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one (1) or
three (3). If appointed at a meeting on the request of one or more shareholders
or proxies, the majority of shares represented in person or by proxy shall
determine whether one (1) or three (3) inspectors are to be appointed. In case
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any person appointed as inspector fails to appear or fails or refuses to act,
the vacancy may, and on the request of any shareholder or a shareholder's proxy
shall, be filled by appointment by the Board of Directors in advance of the
meeting, or at the meeting by the chairman of the meeting. The inspectors shall
perform their duties as follows:
2.10.1 The duties of such inspectors shall be as prescribed by
Colorado law and shall include: determining the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the authenticity, validity and
effect of proxies; receiving votes, ballots or consents; hearing and
determining all challenges and questions in any way arising in
connection with the right to vote; counting and tabulating all votes or
consents; determining when the polls shall close; determining the
result; and such acts as may be proper to conduct the election or vote
with fairness to all shareholders. In the determination of the validity
and effect of proxies, the dates contained in the forms of proxy shall
presumptively determine the order of execution of the proxies,
regardless of the postmark dates on the envelopes in which they are
mailed.
2.10.2 The inspectors of election shall perform their duties
impartially, in, good faith, to the best of their ability and as
expeditiously as is practical. If there are three inspectors of
election, the decision, act or certificate of a majority is effective
in all respects as the decision, act or certificate of all. Any report
or certificate made by the inspectors of election is prima facie
evidence of the facts stated therein.
ARTICLE III
DIRECTORS
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Section 3.1 POWERS. Subject to the limitations of the Articles of
Incorporation and of applicable Colorado law as to action to be authorized or
approved by the shareholders, and subject to the duties of directors as
prescribed by the Bylaws, all corporate powers shall be exercised by or under
the authority of, and the business and affairs of the Corporation shall be
managed by, the Board of Directors. Without prejudice to such general powers,
but subject to the same limitations, it is hereby expressly declared that the
directors shall have the following powers:
3.1.1 To select and remove all the officers, agents and
employees of the Corporation, prescribe such powers and duties for them
as may not be inconsistent with law, with the Articles of Incorporation
or the Bylaws, fix their compensation and require from them security
for faithful service.
3.1.2 To conduct, manage and control the affairs and business
of the Corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the Articles of Incorporation or the
Bylaws, as they may deem best.
3.1.3 To change the Principal Executive Office and principal
office for the transaction of the business of the Corporation from one
location to another as provided in Section 1.1 hereof; to fix and
locate from time to time one or more subsidiary offices of the
Corporation within or without the State of Colorado, as provided in
Section 1.2 hereof; to designate any place within or without the State
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of Colorado for the holding of any shareholders" meeting or meetings;
and to adopt, make and use a corporate seal, and to prescribe the forms
of certificates of stock, and to alter the form of such seal and of
such certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times
comply with the provisions of law.
3.1.4 To authorize the issue of shares of stock of the
Corporation from time to time, upon such terms as may be lawful.
3.1.5 To borrow money and incur indebtedness for the purposes
of the Corporation, and to cause to be executed and delivered therefor,
in the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations or other evidences of debt
and securities therefor.
3.1.6 By resolution adopted by a majority of the authorized
number of directors, to designate an executive and other committees,
each consisting of two or more directors, to serve at the pleasure of
the Board, and to prescribe the manner in which proceedings of such
committee shall be conducted. Unless the Board of Directors shall
otherwise prescribe the manner of proceedings of any such committee,
meetings of such committee may be regularly scheduled in advance and
may be called at any time by any two members thereof; otherwise, the
provisions of these Bylaws with respect to notice and conduct of
meetings of the Board shall govern. The appointment of members or
alternate members of a committee requires the vote of a majority of the
authorized number of directors. Any such committee, to the extent
provided in a resolution of the Board, shall have all of the authority
of the Board, except with respect to:
(a) the approval of any action for which Colorado law
or the Articles of Incorporation also require
shareholder approval;
(b) the filling of vacancies on the Board or in any
committee;
(c) the fixing of compensation of the directors for
serving on the Board or on any committee;
(d) the adoption, amendment or repeal of Bylaws;
(e) the amendment or repeal of any resolution of the
Board;
(f) any distribution to the shareholders, except at a
rate or in a periodic amount or within a price range
determined by the Board; and
(vii) the appointment of other committees of the
Board or the members thereof.
The Board may prescribe appropriate rules, not inconsistent with these
Bylaws, by which proceedings of any such committee shall be conducted.
The provisions of these Bylaws relating to the calling of meetings of
the Board, notice of meetings of the Board and waiver of such notice,
adjournments of meetings of the Board, written consents to Board
meetings and approval of minutes, action by the Board by consent in
writing without a meeting, the place of holding such meetings, meetings
by conference telephone or similar communications equipment,
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the quorum for such meetings, the vote required at such meetings and
the withdrawal of directors after commencement of a meeting shall apply
to committees of the Board and action by such committees. In addition,
any member of the committee designated by the Board as the chairman or
as secretary of the committee or any two members of a committee may
call meetings of the committee. Regular meetings of any committee may
be held without notice if the time and place of such meetings are fixed
by the Board of Directors or the committee.
Section 3.2 NUMBER AND QUALIFICATION OF DIRECTORS. The number of
directors of the Corporation shall not be less than three (3) nor more then
seven (9) until changed by amendment of the Articles of Incorporation or by a
bylaw amending this Section 3.2 duly adopted by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote, provided that
a proposal to reduce the fixed number or the minimum number of directors below
three (3) cannot be adopted if the votes cast against its adoption at a meeting
or the shares not consenting in the case of action by written consent, are equal
to more than sixteen and two-thirds percent (16-2/3%) of the outstanding shares
entitled to vote. The exact number of directors shall be fixed from time to
time, within the limits specified in the Articles of Incorporation or in this
Section 3.2, by a bylaw or amendment thereof duly adopted by the vote of a
majority of the shares entitled to vote represented and voting at a duly held
meeting at which a quorum is present (which shares voting affirmatively also
constitute at least a majority of the required quorum), or by the written
consent of the holders of a majority of the outstanding shares entitled to vote,
or by the Board of Directors. Subject to the foregoing provisions for changing
the number of directors, the number of directors of this Corporation has been
fixed at three (3).
Section 3.3 ELECTION AND TERM OF OFFICE. The directors shall be elected
at each annual meeting of shareholders but, if any such annual meeting is not
held or the directors are not elected thereat, the directors may be elected at
any special meeting of shareholders held for that purpose. All directors shall
hold office until their respective successors are elected, subject to applicable
Colorado law and the provisions of these Bylaws with respect to vacancies on the
Board.
Section 3.4 RESIGNATION AND REMOVAL OF DIRECTORS. Any director may
resign effective upon giving written notice to the Chairman of the Board, the
President, the Secretary or the Board of Directors of the Corporation, unless
the notice specifies a later time for the effectiveness of such resignation, in
which case such resignation shall be effective at the time specified. Unless
such resignation specifies otherwise, its acceptance by the Corporation shall
not be necessary to make it effective. The Board of Directors may declare vacant
the office of a director who has been declared of unsound mind by an order of
court or convicted of a felony. Any or all of the directors may be removed
without cause if such removal is approved by the affirmative vote of a majority
of the outstanding shares entitled to vote provided that no directors may be
removed (unless the entire Board is removed) when the votes cast against removal
(or, if such action is taken by written consent, the shares held by persons not
consenting in writing to such removal) would be sufficient to elect such
director if voted cumulatively at an election at which the same total number of
votes were cast (or, if such action is taken by written consent, all shares
entitled to vote were voted) and the entire number of directors authorized at
the time of the directors" most recent election were then being elected. No
reduction of the authorized number of directors shall have the effect of
removing any director before his term of office expires.
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Section 3.5 VACANCIES. A vacancy in the Board of Directors shall be
deemed to exist in case of the death, resignation or removal of any director, if
a director has been declared of unsound mind by order of court or convicted of
a felony, if the authorized number of directors be increased, or if the
shareholders fail, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting. Vacancies in the Board of Directors,
except for a vacancy created by the removal of a director, may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until his
successor is elected at an annual or a special meeting of the shareholders. A
vacancy in the Board of Directors created by the removal of a director may only
be filled by the vote of a majority of the shares entitled to vote represented
and voting at a duly held meeting at which a quorum is present (which shares
voting affirmatively also constitute at least a majority of the required
quorum), or by the written consent of the holders of a majority of the
outstanding shares. The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the directors. Any such
election by written consent other than to fill a vacancy created by removal
shall require the consent of holders of a majority of the outstanding shares
entitled to vote.
Section 3.6 PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held at any place within or without the State which has been
designated in the notice or written waiver of notice of the meeting, or, if not
stated in the notice or waiver of notice or if there is no notice, designated by
resolution of the Board of Directors or, either before or after the meeting,
consented to in writing by all members of the Board who were not present at the
meeting. In the absence of such designation, regular meetings shall be held at
the Principal Executive Office of the Corporation. Special meetings of the Board
may be held either at a place so designated or at the Principal Executive
Office.
Section 3.7 REGULAR MEETINGS. Immediately following each annual meeting
of shareholders the Board of Directors shall hold a regular meeting at the place
of said annual meeting or at such other place as shall be fixed by the Board of
Directors, for the purpose of organization, election of officers, and the
transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 3.8 OTHER REGULAR MEETINGS. There shall be no other regular
meetings of the Board of Directors.
Section 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose or purposes shall be called at any time by the
Chairman of the Board, the President, any Vice-President, the Secretary or by
any two directors, subject to the following notice requirements:
3.9.1 Written notice of the time and place of special meetings
shall be delivered personally to each director or communicated to each
director by telephone, or by telegraph or mail, charges prepaid,
addressed to him at his address as it is shown upon the records of the
Corporation or, if it is not so shown on such records or is not readily
ascertainable, at the place at which the meetings of the directors are
regularly held. In case such notice is mailed, it shall be deposited in
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the United States mail in the place in which the Principal Executive
Office of the Corporation is located at least four (4) days prior to
the time of the holding of the meeting. In case such notice is
delivered personally or by telephone or telegraph, as above provided,
it shall be so delivered at least forty-eight (48) hours prior to the
time of the holding of the meeting. Such mailing, telegraphing or
delivery, personally or by telephone, as above provided, shall be due,
legal and personal notice to such director.
3.9.2 Any notice shall state the date, place and hour of the
meeting and the general nature of the business to be transacted, and no
other business may be transacted at the meeting.
Section 3.10 ACTION WITHOUT MEETING. Any action by the Board of
Directors may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board and shall have the same force and effect as a unanimous vote of such
directors.
Section 3.11 ACTION AT A MEETING; QUORUM AND REQUIRED VOTE. Presence of
a majority of the authorized number of directors at a meeting of the Board of
Directors constitutes a quorum for the transaction of business, except as
hereinafter provided. Members of the Board may participate in a meeting through
use of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participation in a
meeting as permitted in the preceding sentence constitutes presence in person at
such meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as
the act of the Board of Directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the Articles of Incorporation, or by these Bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of director, provided that any action taken is approved by at least a
majority of the required quorum for such meeting.
Section 3.12 VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of the Board of Directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the directors not present or who, though present, has
prior to the meeting or at its commencement, protested the lack of proper notice
to him, signs a written waiver of notice or a consent to holding such meeting or
an approval of the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 3.13 ADJOURNMENT. A quorum of the directors may adjourn any
directors" meeting to meet again at a stated day and hour; provided, however,
that in the absence of a quorum a majority of the directors present at any
directors" meeting, either regular or special, may adjourn from time to time
until the time fixed for the next regular meeting of the Board.
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Section 3.14 NOTICE OF ADJOURNMENT. If the meeting is adjourned for
more than twenty-four (24) hours, notice of any adjournment to another time or
place shall be given prior to the time of the adjourned meeting to the directors
who were not present at the time of adjournment- Otherwise, notice of the time
and place of holding an adjourned meeting need not be given to absent directors
if the time and place be fixed at the meeting adjourned.
Section 3.15 FEES AND COMPENSATION. Directors and members of committees
shall receive neither compensation for their services as directors or members of
committees or reimbursement for their expenses incurred as directors or members
of committees unless these payments are fixed by resolution of the Board.
Directors and members of committees may receive compensation and reimbursement
for their expenses incurred as officers, agents or employees of or for other
services performed for the Corporation as approved by the President without
authorization, approval or ratification by the Board.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS. OFFICERS
EMPLOYEES AND OTHER AGENTS
--------------------------
Section 4.1 INDEMNIFICATION - THIRD PARTY PROCEEDINGS. The corporation
shall indemnify any person (the "Indemnitee") who is or was a party or is
threatened to be made a party to any proceeding (other than an action by or in
the right of the corporation to procure a judgment in its favor) by reason of
the fact that Indemnitee is or was a director or officer of the corporation, or
any subsidiary of the corporation, and the corporation may indemnify a person
who is or was a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an
employee or other agent of the corporation (the "Indemnitee Agent") by reason of
any action or inaction on the part of Indemnitee or Indemnitee Agent while an
officer, director or agent or by reason of the fact that Indemnitee or
Indemnitee Agent is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including subject to
Section 4.19, attorneys" fees and any expenses of establishing a right to
indemnification pursuant to this Article IV, or under Colorado law), judgments,
fines, settlements (if such settlement is approved in advance by the
corporation, which approval shall not be unreasonable withheld) and other
amounts actually and reasonably incurred by Indemnitee or Indemnitee Agent in
connection with such proceeding if Indemnitee or Indemnitee Agent acted in good
faith and in a manner Indemnitee or Indemnitee Agent reasonably believed to be
in or not opposed to the best interests of the corporation and, in the case of a
criminal proceeding, if Indemnitee or Indemnitee Agent had no reasonable cause
to believe Indemnitee's or Indemnitee Agent's conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that Indemnitee or Indemnitee Agent did not act in good faith and in
a manner which Indemnitee or Indemnitee Agent reasonably believed to be in or
not opposed to the best interests of the corporation, or with respect to any
criminal proceedings, would not create a presumption that Indemnitee or
Indemnitee Agent had reasonable cause to believe that Indemnitee's or Indemnitee
Agent's conduct was unlawful.
Section 4.2 INDEMNIFICATION - PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall indemnify Indemnitee and may indemnify
Indemnitee Agent if Indemnitee, or Indemnitee Agent, as the case may be, was or
is a party or is threatened to be made a party to any threatened, pending or
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completed action by or in the right of the corporation or any subsidiary of the
corporation to procure a judgment in its favor by reason of the fact that
Indemnitee or Indemnitee Agent is or was a director, officer, employee or other
agent of the corporation, or any subsidiary of the corporation, by reason of any
action or inaction on the part of Indemnitee or Indemnitee Agent while an
officer, director or agent or by reason of the fact that Indemnitee or
Indemnitee Agent is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including subject to
Section 4.19, attorneys" fees and any expenses of establishing a right to
indemnification pursuant to this Article IV or under Colorado law) and, to the
fullest extent permitted by law, amounts paid in settlement, in each case to the
extent actually and reasonably incurred by Indemnitee or Indemnitee Agent in
connection with the defense or settlement of the proceeding if Indemnitee or
Indemnitee Agent acted in good faith and in a manner Indemnitee or Indemnitee
Agent believed to be in or not opposed to the best interests of the corporation
and its shareholders, except that no indemnification shall be made with respect
to any claim, issue or matter to which Indemnitee (or Indemnitee Agent) shall
have been adjudged to have been liable to the corporation in the performance of
Indemnitee's or Indemnitee Agent's duty to the corporation and its shareholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, Indemnitee (or Indemnitee Agent) is fairly and reasonably entitled
to indemnity for expenses and then only to the extent that the court shall
determine.
Section 4.3 SUCCESSFUL DEFENSE ON MERITS. To the extent that Indemnitee
(or Indemnitee Agent) without limitation has been successful on the merits in
defense of any proceeding referred to in Sections 4.1 or 4.2 or in defense of
any claim, issue or matter therein, the corporation shall indemnify Indemnitee
(or Indemnitee Agent) against expenses including attorneys" fees) actually and
reasonably incurred by Indemnitee or (Indemnitee Agent) in connection therewith.
Section 4.4 CERTAIN TERMS DEFINED. For purposes of this Article IV,
references to "other enterprises" shall include employee benefit plans,
references to "fines" shall include any excise taxes assessed on Indemnitee or
Indemnitee Agent with respect to an employee benefit plan, and references to
"proceeding" shall include any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative. References
to "corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation, so.
that any person who is or was a director, officer, employee, or other agent of
such a constituent corporation or who, being or having been such a director,
officer, employee or other agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article IV with respect to the resulting or surviving
corporation as such person would if he or she had served the resulting or
surviving corporation in the same capacity.
Section 4.5 ADVANCEMENT OF EXPENSES. The corporation shall advance all
expenses incurred by Indemnitee and may advance all or any expenses incurred by
Indemnitee Agent in connection with the investigation, defense, settlement
(excluding amounts actually paid in settlement of any action, suit or
proceeding) or appeal of any civil or criminal action, suit or proceeding
referenced in Sections 4.1 or 4.2. Indemnitee or Indemnitee Agent hereby
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undertakes to repay such amounts advanced only if, and to the extent that, it
shall be determined ultimately that Indemnitee or Indemnitee Agent is not
entitled to be indemnified by the corporation as authorized hereby. The advances
to be made hereunder shall be paid by the corporation (i) to Indemnitee within
twenty (20) days following delivery of a written request therefor by Indemnitee
to the corporation; and (ii) to Indemnitee Agent within twenty (20) days
following the later of a written request therefor by Indemnitee Agent to the
corporation and determination by the corporation to advance expenses to
Indemnitee's Agent pursuant to the corporation's discretionary authority
hereunder.
Section 4.6 NOTICE OF CLAIM. Indemnitee shall, as a condition precedent
to his or her right to be indemnified under this Article IV, and Indemnitee
Agent shall, as a condition precedent to his or her ability to be indemnified
under this Article IV, give the corporation notice in writing as soon as
practicable of any claim made against Indemnitee or Indemnitee Agent, as the
case may be, for which indemnification will or could be sought under this
Article IV. Notice to the corporation shall be directed to the secretary of the
corporation at the principal executive office of the corporation (or such other
address as the corporation shall designate in writing to Indemnitee). In
addition, Indemnitee or Indemnitee Agent shall give the corporation such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's or Indemnitee Agent's power.
Section 4.7 ENFORCEMENT RIGHTS. Any indemnification provided for in
Sections 4.1, 4.2 or 4.3 shall be made no later than sixty (60 days after
receipt of the written request of Indemnitee. If a claim or request under this
Article IV, under any statute, or under any provision of the corporation's
articles of incorporation providing for indemnification is not paid by the
corporation, or on its behalf, within sixty (60) days after written request for
payment thereof has been received by the corporation, Indemnitee may, but need
not, at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim or request, and subject to Section 4.19, Indemnitee
shall also be entitled to be paid for the expenses (including attorneys" fees)
of bringing such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
action, suit or proceeding in advance of its final disposition) that Indemnitee
has not met the standards of conduct which make it permissible under applicable
law for the corporation to indemnify Indemnitee for the amount claimed, but the
burden of proving such defense shall be on the corporation, and Indemnitee shall
be entitled to receive interim payments of expenses pursuant to Section 4.5,
unless and until such defense may be finally adjudicated by court order or
judgment for which no further right of appeal exists. The parties hereto intend
that if the corporation contests Indemnitee's right to indemnification, the
question of Indemnitee's right to indemnification shall be a decision for the
court, and no presumption regarding whether the applicable standard has been met
will arise based on any determination or lack of determination of such by the
corporation (including its board of directors or any subgroup thereof,
independent legal counsel or its shareholders). The board of directors may, in
its discretion, provide by resolution for similar or identical enforcement
rights for any Indemnitee Agent.
Section 4.8 ASSUMPTION OF DEFENSE. In the event the corporation shall
be obligated to pay the expenses of any proceeding against the Indemnitee (or
Indemnitee Agent), the corporation, if appropriate, shall be entitled to assume
the defense of such proceeding with counsel approved by Indemnitee (or
Indemnitee Agent), which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee (or Indemnitee Agent) of written notice of its election
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so to do. After delivery of such notice, approval of such counsel by Indemnitee
(or Indemnitee Agent) and the retention of such counsel by the corporation, the
corporation will not be liable to Indemnitee (or Indemnitee Agent) under this
Article IV for any fees of counsel subsequently incurred by Indemnitee (or
Indemnitee Agent) with respect to the same proceeding, unless (i) the employment
of counsel by Indemnitee (or Indemnitee Agent) is authorized by the corporation,
(ii) Indemnitee (or Indemnitee Agent) shall have reasonably concluded that there
may be conflict of interest of such counsel retained by the corporation between
the corporation and Indemnitee (or Indemnitee Agent) in the conduct of such
defense, or (iii) the corporation ceases or terminates the employment of such
counsel with respect to the defense of such proceeding, in any of which events
then the fees and expenses of Indemnitee's (or Indemnitee Agent's) counsel shall
be at the expense of the corporation. At all times, Indemnitee (or Indemnitee
Agent) shall have the right to employ other counsel in any such proceeding at
Indemnitee's (or Indemnitee Agent's) expense.
Section 4.9 APPROVAL OF EXPENSES. No expenses for which indemnity shall
be sought under this Article IV, other than those in respect of judgments and
verdicts actually rendered, shall be incurred without the prior consent of the
corporation, which consent shall not be unreasonably withheld.
Section 4.10 SUBROGATION. In the event of payment under this Article
IV, the corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of the Indemnitee (or Indemnitee Agent), who shall do all
things that may be necessary to secure such rights, including the execution of
such documents necessary to enable the corporation effectively to bring suit to
enforce such rights.
Section 4.11 EXCEPTIONS. Notwithstanding any other provision herein to
the contrary, the corporation shall not be obligated pursuant to this Article IV
as follows:
(a) EXCLUDED ACTS. to indemnify Indemnitee (i) as to
circumstances in which indemnity is expressly prohibited pursuant to
Colorado law, or (ii) for any acts or omissions or transactions from
which a director may not be relieved of liability pursuant to Colorado
law; or
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by Indemnitee and not by way of defense, except
with respect to proceedings brought to establish or enforce a right to
indemnification under this Article IV, or any other statute or law or
as otherwise required under Colorado law, but such indemnification or
advancement of expenses may be provided by the corporation in specific
cases if the board of directors has approved the initiation or bringing
of such suit; or
(c) LACK OF GOOD FAITH. to indemnify Indemnitee for any
expenses incurred by the Indemnitee with respect to any proceedings
instituted by Indemnitee to enforce or interpret this Article IV, if a
court of competent jurisdiction determines that such proceeding was not
made in good faith or was frivolous; or
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(d) INSURED CLAIMS. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of officers" and directors" liability insurance
maintained by the corporation; or
(e) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for
expenses and the payment of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
Section 4.12 PARTIAL INDEMNIFICATION. If Indemnitee is entitled under
any provision of this Article IV to indemnification by the corporation for some
or a portion of the expenses, judgments, fines or penalties actually or
reasonably incurred by the Indemnitee in the investigation, defense, appeal or
settlement of any civil or criminal action, suit or proceeding, but not,
however, for the total amount thereof, the corporation shall nevertheless
indemnify Indemnitee for the portion of such expenses, judgments, fines or
penalties to which Indemnitee is entitled.
Section 4.13 COVERAGE. This Article IV shall, to the extent permitted
by law, apply to acts or omissions of (i) Indemnitee which occurred prior to the
adoption of this Article IV if Indemnitee was a director or officer of the
corporation or was sewing at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, at the time such act or omission occurred; and (ii) Indemnitee Agent
which occurred prior to the adoption of this Article IV if Indemnitee Agent was
an employee or other agent of the corporation or was serving at the request of
the corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise at the time such act or omission
occurred. All rights to indemnification under this Article IV shall be deemed to
be provided by a contract between the corporation and the Indemnitee in which
the corporation hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the corporation's articles of incorporation, these bylaws or by
statute. Any repeal or modification of these bylaws, or any applicable law shall
not affect any rights or obligations then existing under this Article IV. The
provisions of this Article IV shall continue as the Indemnitee and Indemnitee
Agent for any action taken or not taken while serving in an indemnified capacity
even though the Indemnitee or Indemnitee Agent may have ceased to serve in such
capacity at the time of any action, suit or other covered proceeding. This
Article IV shall be binding upon the corporation and its successors and assigns
and shall inure to the benefit of Indemnitee and Indemnitee Agent and
Indemnitee's and Indemnitee Agent's estate, heirs, legal representatives and
assigns.
Section 4.14 NON-EXCLUSIVITY. Nothing herein shall be deemed to
diminish or otherwise restrict any rights to which Indemnitee or Indemnitee
Agent may be entitled under the corporation's article of incorporation, these
bylaws, any agreement, any vote of shareholders or disinterested directors, or
under the laws of the State of Colorado.
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Section 4.15 SEVERABILITY. Nothing in this Article IV is intended to
require or shall be construed as requiring the corporation to do or fail to do
any act in violation of applicable law. If this Article IV or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify Indemnitee or Indemnitee Agent to
the fullest extent permitted by any applicable portion of this Article IV that
shall not have been invalidated.
Section 4.16 MUTUAL ACKNOWLEDGEMENT. Both the corporation and
Indemnitee acknowledge that in certain instances, federal law or applicable
public policy may prohibit the corporation from indemnifying its directors and
officers under this Article IV or otherwise- Indemnitee understands and
acknowledges that the corporation has undertaken or may be required in the
future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a
determination of the corporation's right under public policy to indemnify
Indemnitee.
Section 4.17 OFFICER AND DIRECTOR LIABILITY INSURANCE. The corporation
shall, from time to time, make the good faith determination whether or not it is
practicable for the corporation to obtain and maintain a policy or policies of
insurance with reputable insurance companies providing the officers and
directors of the corporation with coverage for losses from wrongful acts, or to
ensure the corporation's performance of its indemnification obligations under
this Article IV. Among other considerations, the corporation will weigh the
costs of obtaining such insurance coverage against the protection afforded by
such coverage. Notwithstanding the foregoing, the corporation shall have no
obligation to obtain or maintain such insurance if the corporation determines in
good faith that such insurance is not reasonably available, if the premium costs
for such insurance are disproportionate to the amount of coverage provided, if
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a subsidiary or parent of the corporation.
Section 4.18 NOTICE TO INSURERS. If, at the time of the receipt of a
notice of a claim pursuant to Section 4.6, the corporation has director and
officer liability insurance in effect, the corporation shall give prompt notice
of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The corporation shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
Section 4.19 ATTORNEYS" FEES. In the event that any action is
instituted by Indemnitee under this Article IV to enforce or interpret any of
the terms hereof, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys" fees, incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that the action was not instituted in good faith or was
frivolous. In the event of an action instituted by or in the name of the
corporation under this Article IV, or to enforce or interpret any of the terms
of this Article IV, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys" fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and cross-claims
made in such action), unless as a part of such action the court determines that
Indemnitee's defenses to such action were not made in good faith or were
frivolous. The board of directors may, in its discretion, provide by resolution
for payment of such attorneys" fees to any Indemnitee Agent.
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Section 4.20 NOTICE. All notices, requests, demands and other
communications under this Article 1V shall be in writing and shall be deemed
duly given (i) if delivered by hand and receipted for by the addressee, on the
date of such receipt, or (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third (3rd) business day after the date postmarked.
ARTICLE V
OFFICERS
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Section 5.1 OFFICERS. The officers of the corporation shall be a
President, a Vice-President, a Secretary and a Chief Financial Officer. The
Corporation may also have, at the discretion of the Board of Directors, one or
more additional Vice-Presidents, one or more assistant secretaries, one or more
assistant financial officers, and such other officers as may be appointed in
accordance with the provisions of Section 5.3. One person may hold two or more
offices.
Section 5.2 ELECTION. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Section 5.3 or
Section 5.5, shall be chosen annually by the Board of Directors, and each shall
hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and qualified.
Section 5.3 SUBORDINATE OFFICERS, ETC. The Board of Directors may
appoint, and may empower the President to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold office, for
such period, have such authority and perform such duties as are provided in the
Bylaws or as the Board of Directors may from time to time determine.
Section 5.4 REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board of Directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors (subject, in each case, to the rights, if any, of an
officer under any contract of employment). Any officer may resign at any time by
giving written notice to the Board of Directors or to the President, or the
Secretary of the Corporation, without prejudice, however, to the rights, if any,
of the Corporation under any contract to which such officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular appointments to such office.
Section 5.6 CHAIRMAN OF THE BOARD. The Board of Directors may, in its
discretion, elect a Chairman of the Board, who, unless otherwise determined by
the Board of Directors, shall, if present, preside at all meetings of the Board
of Directors and exercise and perform such other powers and duties as may be
from time to time assigned to him by the Board of Directors or prescribed by the
Bylaws.
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Section 5.7 PRESIDENT. Subject to the supervisory powers, if any, as
may be given by the Board of Directors to the chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business of the Corporation.
He shall preside at all meetings of the shareholders and, in the absence of the
Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. He shall be ex-officio a member of all the standing committees,
including the executive committee, if any, and shall have the general powers,
and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors or the Bylaws.
Section 5.8 VICE-PRESIDENTS. In the absence or disability of the
President, the Vice-Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice-President designated by the Board of
Directors, or if there has been no such designation, the Vice-President
designated by the President, shall perform all the duties of the President, and
when so acting shall have all the powers of, and subject to all the restrictions
upon, the President. The Vice-Presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or the Bylaws or the President.
Section 5.9 SECRETARY. The Secretary shall record or cause to be
recorded, and shall keep or cause to be kept, at the Principal Executive Office
and such other place as the Board of Directors may order, a book of minutes of
actions taken at all meetings of directors and shareholders, with the time and
place of holding, whether regular or special, and, if special, how authorized,
the notice thereof given, the names of those present at directors" meetings, the
number of shares present or represented at shareholders" meetings, and the
proceedings thereof. In addition to the above:
5.9.1 The Secretary shall keep, or cause to be kept, at the
Principal Executive Office or at the office of the Corporation's
transfer agent, a share register, or a duplicate share register,
showing the names of the shareholders and their addresses, the number
and classes of shares held by each, the number and date of certificates
issued for the same, and the number and date of cancellation of every
certificate surrendered for cancellation.
5.9.2 The Secretary shall give, or cause, to be given, notice
of all the meetings of the shareholders and of the Board of Directors
required by the Bylaws or by law to be given, and he shall keep the
seal of the Corporation in safe custody, and shall have such other
powers and perform such other duties as may be prescribed by the Board
of Directors or by the Bylaws. If the Secretary refuses or fails to
give notice of any meeting lawfully called, any other officer of the
Corporation may give notice of such meeting.
5.9.3 The Assistant Secretary, or if there be more than one,
any Assistant Secretary, may perform any or all of the duties and
exercise any or all of the powers of the Secretary unless prohibited
from doing so by the Board of Directors, the President or the
Secretary, and shall have such other powers and perform any others
duties as are prescribed for him by the Board of Directors, the
President, or the Secretary.
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Section 5.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer of
the Corporation shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares. Any surplus,
including earned surplus, paid-in surplus and surplus arising from a reduction
of stated capital, shall be classified according to source and shown in a
separate account. The books of account shall at all reasonable times be open to
inspection by any director. The Chief Financial Officer shall deposit all moneys
and other valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or the Bylaws. The
Assistant Financial Officer, or if there be more than one, any Assistant
Financial Officer, may perform any or all of the duties and exercise any or all
of the powers of the Chief Financial Officer unless prohibited from doing so by
the Board of Directors, the President or the Chief Financial Officer, and shall
have such other powers and perform such other duties as are prescribed for him
by the Board of Directors, the President or the Chief Financial Officer.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 RECORD DATE. The Board of Directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or entitled to give consent
to corporate action in writing without a meeting, to receive any report, to
receive any dividend or distribution, or any allotment of rights, or to exercise
rights in respect to any change, conversion, exchange of shares or any other
lawful action. The record date so fixed shall be not more than sixty (60) days
nor less than ten (10) days prior to the date of any meeting, nor more than
sixty (60) days prior to any other event for the purposes of which it is fixed.
When a record date is so fixed, only shareholders of record at the close of
business on that date are entitled to notice of and to vote at any such meeting,
to give consent without a meeting, to receive any report, to receive a dividend,
distribution, or allotment of rights, or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the Corporation
after the record date, except as otherwise provided in the Articles of
Incorporation or Bylaws.
Section 6.2 INSPECTION OF CORPORATE RECORDS. The accounting books and
records, the record of shareholders, and minutes of proceedings of the
shareholders and the Board and committees of the Board of this Corporation and
any subsidiary of this Corporation shall be open to inspection upon the written
demand on the Corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts. A
shareholder or shareholders holding at least five percent (5%) in the aggregate
of the outstanding voting shares of the Corporation or who hold at least one
percent (1%) of such voting shares and have filed a Schedule 14B with the United
States Securities and Exchange Commission relating to the election of directors
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of the Corporation shall have (in person, or by agent or attorney) the right to
inspect and copy the record of shareholders" names and addresses and
shareholdings during usual business hours upon five (5) business days prior
written demand upon the Corporation and to obtain from the transfer agent for
the Corporation, upon written demand and upon the tender of its usual charges, a
list of the shareholders" names and addresses, who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five (5) business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled. Every
director shall have the absolute right at any reasonable time to inspect and
copy all books, records and documents of every kind and to inspect the physical
properties of the Corporation. Such inspection by a director may be made in
person or by agent or attorney and the right of inspection includes the right to
copy and make extracts.
Section 6.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by the
resolution of the Board of Directors. The Board of Directors may authorize one
or more officers of the Corporation to designate the person or persons
authorized to sign such documents and the manner in which such documents shall
be signed.
Section 6.4 ANNUAL AND OTHER REPORTS. Any law or statute requiring that
the Board of Directors of the Corporation shall cause an annual report to be
sent to the shareholders is hereby expressly waived, subject to the following:
6.4.1 If no annual report for the last fiscal year has been
sent to shareholders, the Corporation shall, upon the written request
of a shareholder made more than one hundred twenty (120) days after the
close of such fiscal year, deliver or mail to the person making the
request within thirty (30) days thereafter a balance sheet as of the
end of the-last fiscal year and an income statement and statement of
changes in financial position for such fiscal year, accompanied by any
report thereon of independent accountants or, if there is no such
report, the certificate of an authorized officer of the Corporation
that such statements were . prepared without audit from the books and
records of the Corporation.
6.4.2 A shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of the Corporation
may make a written request to the Corporation for an income statement
of the Corporation for the three-month, six-month or nine-month period
of the current fiscal year ended more than thirty (30) days prior to
the date of the request and a balance sheet of the Corporation as of
the end of such period and, in addition, if no annual report for the
last fiscal year has been sent to shareholders and one is required
pursuant to this section, the annual report for the last fiscal year.
The Corporation shall use its best efforts to deliver or mail the
statements to the person making the request within thirty (30) days
thereafter. A copy of any such statements shall be kept on file in the
Principal Executive Office of the Corporation for twelve (12) months
and they shall be exhibited at all reasonable times to any shareholder
demanding an examination of them or a copy shall be mailed to such
shareholder.
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6.4.3 The quarterly income statements and balance sheets
referred to in this section shall be accompanied by the report thereon,
if any, of any independent accountants engaged by the Corporation or
the certificate of an authorized officer of the Corporation that such
financial statements were prepared without audit from the books and
records of the Corporation.
6.4.4 Unless otherwise determined by the Board of Directors or
the Chief Financial Officer, the Chief Financial Officer and any
assistant financial officer are each authorized officers of the
Corporation to execute the certificate that the annual report and
quarterly income statements and balance sheets referred to in this
section were prepared without audit from the books and records of the
Corporation.
6.4.5 Any report sent to the shareholders shall be given
personally or by first-class mail or other means of written
communication, charges prepaid, addressed to such shareholder at the
address of such shareholder appearing on the books of the Corporation
or given by such shareholder to the Corporation for the purpose of
notice or set forth in the written request of the shareholder as
provided in this section. If any report addressed to the shareholder at
the address of such shareholder appearing on the books of the
Corporation is returned to the Corporation by the United States Postal
Service marked to indicate that the United States Postal Service is
unable to deliver the report to the shareholder at such address, all
future reports shall be deemed to have been duly given without further
mailing if the same shall be available for the shareholder upon written
demand of the shareholder at the Principal Executive Office of the
Corporation for a period of one (1) year from the date of the giving of
the report to all other shareholders. If no address appears on the
books of the Corporation or is given by the shareholder to the
Corporation for the purpose of notice or is set forth in the written
request of the shareholder as provided in this section, such report
shall be deemed to have been given to such shareholder if sent by mail
or other means of written communication addressed to the place where
the Principal Executive Office of the Corporation is located, or if
published at least once in a newspaper of general circulation in the
county in which the Principal Executive Office is located. Any such
report shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such report in accordance
with the foregoing provisions, executed by the Secretary, Assistant
Secretary or any transfer agent of the Corporation shall be prima facie
evidence of the giving of the report.
Section 6.5 CONTRACTS, ETC., HOW EXECUTED. The Board of Directors,
except as in the Bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or, execute any instrument
in the name of and on behalf of the Corporation, and such authority may be
general or confined to specific instances; and, unless so authorized by the
Board of Directors, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or to any amount.
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Section 6.6 CERTIFICATE FOR SHARES. Every holder of shares in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation by the Chairman or Vice-Chairman of the Board or the President or a
Vice-President and by the Chief Financial Officer or an assistant financial
officer or the Secretary or any Assistant Secretary, certifying the number of
shares and the class or series of shares owned by the shareholder, subject to
the following:
6.6.1 Any of the signatures on the certificate may be
facsimile, provided that in such event at least one signature,
including that of either officer or the Corporation's registrar or
transfer agent, if any, shall be manually signed. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect as if such
person were an officer, transfer agent or registrar at the date of
issue.
6.6.2 Any such certificate shall also contain such legend or
other statement as may be required by applicable Colorado law, the
federal securities laws, and any agreement between the Corporation and
the issuee thereof and may contain such legend or other statement as
may be required by any other applicable law or regulation or agreement.
6.6.3 Certificates for shares may be issued prior to full
payment under such restrictions and for such purposes as the Board of
Directors or the Bylaws may provide; provided; however, that any such
certificate so issued prior to full payment shall state on the face
thereof the amount remaining unpaid and the terms of payment thereof.
6.6.4 No new certificate for shares shall be issued in lieu of
an old certificate unless the latter is surrendered and canceled at the
same time; provided, however, that a new certificate will be issued
without the surrender and cancellation of the old certificate if (1)
the old certificate is lost, apparently destroyed or wrongfully taken;
(2) the request for the issuance of the new certificate is made within
a reasonable time after the owner of the old certificate has notice of
its loss, destruction, or theft; (3) the request for the issuance of a
new certificate is made prior to the receipt of notice by the
Corporation that the old certificate has been acquired by a bona fide
purchaser; (4) the owner of the old certificate files a sufficient
indemnity bond with or provides other adequate security to the
Corporation, and (5) the owner satisfies any other reasonable
requirements imposed by the Corporation. In the event of the issuance
of a new certificate, the rights and liabilities of the Corporation,
and of the holders of the old and new certificates, shall be governed
by the provisions of Colorado law.
Section 6.7 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. Unless the
Board of Directors shall otherwise determine, the Chairman of the Board, the
President or any Vice-President and the Secretary or any Assistant Secretary of
this Corporation are authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this Corporation. The
authority herein granted to said officers to vote or represent on behalf of this
Corporation any and all shares held by this Corporation in any other
corporation, or corporations may be exercised either by such officers in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by said officers.
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Section 6.8 INSPECTION OF BYLAWS. The Corporation shall keep in its
Principal Executive Office in California, or if its Principal Executive Office
is not in California, then at its principal business office in California (or
otherwise provide upon written request of any shareholder) the original or a
copy of the Bylaws as amended or otherwise altered to date, certified by the
Secretary, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 6.9 CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in Applicable Colorado law shall govern the construction of these
Bylaws. Without limiting the generality of the foregoing, the masculine gender
includes the feminine and neuter, the singular number includes the plural and
the plural number includes the singular, and the term "person" includes a
corporation as well as a natural person.
ARTICLE VII
AMENDMENTS
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Section 7.1 POWER OF SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written assent of shareholders
entitled to vote such shares, except as otherwise provided by law or by the
Articles of Incorporation.
Section 7.2 POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section 7.1 to adopt, amend or repeal bylaws, bylaws may be adopted,
amended or repealed by the Board of Directors provided, however, that the Board
of Directors may adopt a bylaw or amendment thereof changing the authorized
number of directors only for the purpose of fixing the exact number of directors
within the limits specified in the Articles of Incorporation or in Section 3.2
of these Bylaws.
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