Exhibit 3.4
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AMENDED AND RESTATED BYLAWS
OF
PARK PHARMACY CORPORATION (A COLORADO CORPORATION)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE. The registered office of the
corporation shall be fixed in the Articles of Incorporation of
the corporation.
1.2 OTHER OFFICES. The board of directors may at any time
establish branch or subordinate offices at any place or places
where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 PLACE OF MEETINGS. Meetings of shareholders shall be
held at any place within or outside the State of Colorado
designated by the board of directors. In the absence of any such
designation, shareholders' meetings shall be held at the
registered office of the corporation.
2.2 ANNUAL MEETING.
(a) The annual meeting of shareholders shall be held
each year on a date and at a time designated by the board of
directors. At the meeting, directors shall be elected, and
any other proper business may be transacted.
(b) At an annual meeting of the shareholders, only such
business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an
annual meeting, business must be: (A) specified in the
notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors, (B) otherwise
properly brought before the meeting by or at the direction
of the board of directors, or (C) otherwise properly brought
before the meeting by a shareholder. For business to be
properly brought before an annual meeting by a shareholder,
the shareholder must have given timely notice thereof in
writing to the secretary of the corporation. To be timely, a
shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the
corporation not less than one hundred twenty (120) calendar
days in advance of the date specified in the corporation's
proxy statement released to shareholders in connection with
the previous year's annual meeting of shareholders;
provided, however, that in the event that no annual meeting
was held in the previous year or the date of the annual
meeting has been changed by more than thirty (30) days from
the date contemplated at the time of the previous year's
proxy statement, notice by the shareholder to be timely must
be so received not later than the close of business on the
later of one hundred twenty (120) calendar days in advance
of such annual meeting or ten (10) calendar days following
the date on which public announcement of the date of the
meeting is first made. A shareholder's notice to the
secretary shall set forth 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, (iii) the class and number of
shares of the corporation which are beneficially owned by
the shareholder, (iv) any material interest of the
shareholder in such business, and (v) any other information
that is required to be provided by the shareholder pursuant
to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), in his capacity as a proponent
to a shareholder proposal. Notwithstanding the foregoing, in
order to include information with respect to a shareholder
proposal in the proxy statement and
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form of proxy for a shareholder's meeting, shareholders must
provide notice as required by the regulations promulgated
under the 1934 Act. Notwithstanding anything in these Bylaws
to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual
meeting shall, if the facts warrant, determine and declare
at the meeting that business was not properly brought before
the meeting and in accordance with the provisions of this
paragraph (b), and, if he should so determine, he shall so
declare at the meeting that any such business not properly
brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with
the procedures set forth in this paragraph (c) shall be
eligible for election as directors. Nominations of persons
for election to the board of directors of the corporation
may be made at a meeting of shareholders by or at the
direction of the board of directors or by any shareholder of
the corporation entitled to vote in the election of
directors at the meeting who complies with the notice
procedures set forth in this paragraph (c). Such
nominations, other than those made by or at the direction of
the board of directors, shall be made pursuant to timely
notice in writing to the secretary of the corporation in
accordance with the provisions of paragraph (b) of this
Section 2.2. Such shareholder's notice shall set forth (i)
as to each person, if any, whom the shareholder proposes to
nominate for election or re-election as a director: (A) the
name, age, business address and residence address of such
person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the
corporation which are beneficially owned by such person, (D)
a description of all arrangements or understandings between
the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which
the nominations are to be made by the shareholder, and (E)
any other information relating to such person that is
required to be disclosed in solicitations of proxies for
elections of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the 1934 Act
(including without limitation such person's written consent
to being named in the proxy statement, if any, as a nominee
and to serving as a director if elected); and (ii) as to
such shareholder giving notice, the information required to
be provided pursuant to paragraph (b) of this Section 2.2.
At the request of the board of directors, any person
nominated by a shareholder for election as a director shall
furnish to the secretary of the corporation that information
required to be set forth in the shareholder's notice of
nomination which pertains to the nominee. No person shall be
eligible for election as a director of the corporation
unless nominated in accordance with the procedures set forth
in this paragraph (c). The chairman of the meeting shall, if
the facts warrants, determine and declare at the meeting
that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the
defective nomination shall be disregarded.
2.3 SPECIAL MEETING. A special meeting of the
shareholders may be called at any time by the board of
directors, the chairman of the board, the chairman of the
executive committee, or the chief executive officer, but
such special meetings may not be called by any other person
or persons. Only such business shall be considered at a
special meeting of shareholders as shall have been stated in
the notice for such meeting.
2.4 ORGANIZATION. Meetings of shareholders shall be
presided over by the chairman of the board, if any, or in
his or her absence by the chairman of the executive
committee, if any, or in his or her absence by the chief
executive officer, if any, or in his or her absence by the
president, if any, or in his or her absence by an executive
vice president, if any, or in his her absence by a senior
vice president, if any, or in his or her absence by a vice
president, or in the absence of the foregoing persons by a
chairman designated by the board of directors, or in the
absence of such designation by a chairman chosen at the
meeting by the vote of a majority in interest of the
shareholders present in person or represented by proxy and
entitled to vote thereat. The secretary or in his or her
absence an assistant secretary or in the absence of the
secretary and all assistant secretaries a person whom the
chairman of the meeting shall appoint shall act as secretary
of the meeting and keep a record of the proceedings thereof.
The board of directors of the corporation shall be
entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and
regulations of the board of directors, if any, the chairman
of the meeting shall have the right
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and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of
such chairman, are necessary, appropriate or convenient for
the proper conduct of the meeting, including, without
limitation, establishing an agenda or order of business for
the meeting, rules and procedures for maintaining order at
the meeting and the safety of those present, limitations on
participation in such meeting to shareholders of record of
the corporation and their duly authorized and constituted
proxies, and such other persons as the chairman shall
permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, limitations on the time
allotted to questions or comments by participants and
regulation of the opening and closing of the polls for
balloting and matters which are to be voted on by ballot.
Unless and to the extent determined by the board of
directors or the chairman of the meeting, meetings of
shareholders shall not be required to be held in accordance
with rules of parliamentary procedure.
2.5 NOTICE OF SHAREHOLDERS' MEETINGS. All notices of
meetings of shareholders shall be sent or otherwise given in
accordance with Section 2.6 of these Bylaws not less than
ten (10) nor more than sixty (60) days before the date of
the meeting. The notice shall specify the place, date, and
hour of the meeting and (i) in the case of a special
meeting, the general nature of the business to be transacted
(no business other than that specified in the notice may be
transacted) or (ii) in the case of the annual meeting, those
matters which the board of directors, at the time of giving
the notice, intends to present for action by the
shareholders (but any proper matter may be presented at the
meeting for such action). The notice of any meeting at which
directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the
board intends to present for election.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given either
personally or by mail, telecopy, telegram or other
electronic or wireless means. Notices not personally
delivered shall be sent charges prepaid and shall be
addressed to the shareholder at the address of that
shareholder appearing on the books of the corporation or
given by the shareholder to the corporation for the purpose
of notice. Notice shall be deemed to have been given at the
time when delivered personally or deposited in the mail or
sent by telecopy, telegram or other electronic or wireless
means.
An affidavit of the mailing or other means of giving
any notice of any shareholders' meeting, executed by the
secretary, assistant secretary or any transfer agent of the
corporation giving the notice, shall be prima facie evidence
of the giving of such notice or report.
2.7 QUORUM. The holders of a majority in voting power
of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the shareholders for
the transaction of business except as otherwise provided by
statute or by the Articles of Incorporation. If, however,
such quorum is not present or represented at any meeting of
the shareholders, then either (i) the chairman of the
meeting or (ii) the shareholders by the vote of the holders
of a majority of the stock, present in person or represented
by proxy shall have power to adjourn the meeting in
accordance with Section 2.8 of these Bylaws.
When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is
one upon which, by express provision of the laws of the
State of Colorado or of the Articles of Incorporation or
these Bylaws, a vote of a greater number or voting by
classes is required, in which case such express provision
shall govern and control the decision of the question.
If a quorum be initially present, the shareholders may
continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken is approved by
a majority of the shareholders initially constituting the
quorum.
2.8 ADJOURNED MEETING; NOTICE. Any shareholders'
meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of
the majority of the voting
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power of the shares represented at that meeting, either in
person or by proxy. In the absence of a quorum, no other
business may be transacted at that meeting except as
provided in Section 2.7 of these Bylaws. When any meeting of
shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the
adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken. However, if a new
record date for the adjourned meeting is fixed or if the
adjournment is for more than thirty (30) days from the date
set for the original meeting, then notice of the adjourned
meeting shall be given. Notice of any such adjourned meeting
shall be given to each shareholder of record entitled to
vote at the adjourned meeting in accordance with the
provisions of Sections 2.5 and 2.6 of these Bylaws. At any
adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting.
2.9 VOTING. The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance
with the provisions of Section 2.12 of these Bylaws, subject
to the provisions of the Colorado Business Corporation Act
(relating to voting rights of fiduciaries, pledgors and
joint owners, and to voting trusts and other voting
agreements).
Except as may be otherwise provided in the Articles of
Incorporation, by these Bylaws or required by law, each
shareholder shall be entitled to one vote for each share of
capital stock held by such shareholder. Except as may be
otherwise provided in the Articles of Incorporation, no
shareholder shall be entitled to cumulate such shareholder's
votes, and cumulative voting is prohibited.
Any shareholder entitled to vote on any matter may vote
part of the shares in favor of the proposal and refrain from
voting the remaining shares or, except when the matter is
the election of directors, may vote them against the
proposal; but if the shareholder fails to specify the number
of shares which the shareholder is voting affirmatively, it
will be conclusively presumed that the shareholder's
approving vote is with respect to all shares which the
shareholder is entitled to vote.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE;
CONSENT. The transactions of any meeting of shareholders,
either annual or special, however called and noticed, and
wherever held, shall be as valid as though they had been
taken at a meeting duly held after regular call and notice,
if a quorum be present either in person or by proxy.
Attendance by a person at a meeting shall also constitute a
waiver of notice of and presence at that 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. Attendance at a meeting is not
a waiver of any right to object to the consideration of
matters required by law to be included in the notice of the
meeting but not so included, if that objection is expressly
made at the meeting.
2.11 ACTION BY WRITTEN CONSENT. Subject to the rights
of the holders of the shares of any series of Preferred
Stock or any other class of stock or series thereof having a
preference over the Common Stock as dividend or upon
liquidation, any action required or permitted to be taken by
the shareholders of the corporation must be effected at a
duly called annual or special meeting of shareholders of the
corporation and may not be effected by any consent in
writing by such shareholders.
2.12 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING; GIVING
CONSENTS. For purposes of determining the shareholders
entitled to notice of any meeting or to vote thereat, the
board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) days nor less than ten
(10) days before the date of any such meeting, and in such
event only shareholders of record on the date so fixed are
entitled to notice and to vote, 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, by these Bylaws, by agreement or by
applicable law.
If the board of directors does not so fix a record
date, the record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall
be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is
waived, at the close of business on the business day next
preceding the day on which the meeting is held.
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A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall
apply to any adjournment of the meeting unless the board of
directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if
the meeting is adjourned for more than thirty (30) days from
the date set for the original meeting.
The record date for any other purpose shall be as
provided in Section 8.1 of these Bylaws.
2.13 PROXIES. Every person entitled to vote for
directors, or on any other matter, shall have the right to
do so either in person or by one or more agents authorized
by a written proxy, which may be in the form of a telegram,
cablegram, or other means of electronic transmission, signed
by the person and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy
provides for a longer period.
A proxy shall be deemed signed if the shareholder's
name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the
shareholder or the shareholder's attorney-in-fact. A duly
executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable
power. A shareholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or by
filing another duly executed proxy bearing a later date with
the secretary of the corporation.
A proxy is not revoked by the death or incapacity of
the maker unless, before the vote is counted, written notice
of such death or incapacity is received by the corporation.
2.14 INSPECTORS OF ELECTION. Before any meeting of
shareholders, the board of directors shall appoint an
inspector or inspectors of election to act at the meeting or
its adjournment. The number of inspectors shall be either
one (1) or three (3). If any person appointed as inspector
fails to appear or fails or refuses to act, then the
chairman of the meeting may, and upon the request of any
shareholder or a shareholder's proxy shall, appoint a person
to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares
outstanding and the voting power of each, the
number of shares represented at the meeting, the
existence of a quorum, and the authenticity,
validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and
questions in any way arising in connection with
the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to
conduct the election or vote with fairness to all
shareholders.
The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and
as expeditiously as is practical. If there are three (3)
inspectors of election, the decision, act or
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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
3.1 POWERS. Subject to the provisions of the Colorado
Business Corporation Act and to any limitations in the
Articles of Incorporation or these Bylaws relating to action
required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall
be exercised by or under the direction of the board of
directors.
3.2 NUMBER AND TERM OF OFFICE. The authorized number of
directors shall be as fixed from time to time by the board
of directors; but in no event shall be less than three (3).
No reduction of the authorized number of directors shall
have the effect of removing any director before that
director's term of office expires.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS. Except as
provided in Section 3.4 of these Bylaws, directors shall be
elected at each annual meeting of shareholders to hold
office until the next annual meeting. Each director,
including a director elected or appointed to fill a vacancy,
shall hold office until the expiration of the term for which
elected and until a successor has been elected and
qualified. Directors need not be shareholders unless so
required by the Articles of Incorporation or by these
Bylaws; wherein other qualifications for directors may be
prescribed.
3.4 RESIGNATION AND VACANCIES. Any director may resign
effective on giving written notice to the chairman of the
board, the president, the secretary or the board of
directors, unless the notice specifies a later time for that
resignation to become effective. If the resignation of a
director is effective at a future time, the board of
directors may elect a successor to take office when the
resignation becomes effective.
Unless otherwise provided in the Articles of
Incorporation or by these Bylaws, vacancies in the board of
directors may be filled by a majority of the remaining
directors, even if less than a quorum, or by a sole
remaining director; however, a vacancy created by the
removal of a director by the vote of the shareholders or by
court order may be filled only by the affirmative vote of a
majority of the voting power of shares represented and
voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected
shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and
qualified.
Unless otherwise provided in the Articles of
Incorporation or these Bylaws: (i) Vacancies and newly
created directorships resulting from any increase in the
authorized number of directors elected by all of the
shareholders having the right to vote as a single class may
be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by
the provisions of the Articles of Incorporation, vacancies
and newly created directorships of such class or classes or
series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or
by a sole remaining director so elected. If at any time, by
reason of death or resignation or other cause, the
corporation should have no directors in office, then any
officer or any shareholder or an executor, administrator,
trustee or guardian of a shareholder, or other fiduciary
entrusted with like responsibility for the person or estate
of a shareholder, may call a special meeting of shareholders
in accordance with the provisions of the Articles of
Incorporation or these Bylaws.
3.5 REMOVAL. Unless otherwise restricted by statute,
by the Articles of Incorporation or by these Bylaws, any
director or the entire board of directors may be removed,
with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
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3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. Regular
meetings of the board of directors may be held at any place
within or outside the State of Colorado that has been
designated from time to time by resolution of the board of
directors. In the absence of such a designation, regular
meetings shall be held at the principal executive office of
the corporation. Special meetings of the board of directors
may be held at any place within or outside the State of
Colorado that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no
notice, at the principal executive office of the
corporation.
Any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so
long as all directors participating in the meeting can hear
one another; and all such directors shall be deemed to be
present in person at the meeting.
3.7 REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice if the times of such
meetings are fixed by the board of directors.
3.8 SPECIAL MEETINGS; NOTICE. Special meetings of the
board of directors for any purpose or purposes may be called
at any time by the chairman of the board, the chief
executive officer, the president, the chairman of the
executive committee, any vice president or the secretary or
by any two (2) or more of the directors.
Notice of the time and place of special meetings shall
be delivered personally or by telephone to each director or
sent by mail, telecopy, telegram or other electronic or
wireless means, charges prepaid, addressed to each director
at that director's address as it is shown on the records of
the corporation or if the address is not readily
ascertainable, notice shall be addressed to the director at
the city or place in which the meetings of directors are
regularly held. If the notice is mailed, it shall be
deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. If the notice
is delivered personally or by telephone, telecopy, telegram
or other electronic or wireless means, it shall be delivered
personally or by telephone or other electronic or wireless
means or to the telegraph company at least twenty-four (24)
hours before the time of the holding of the meeting. Any
oral notice given personally or by telephone may be
communicated either to the director or to a person at the
office of the director who the person giving the notice has
reason to believe will promptly communicate it to the
director. If the meeting is to be held at the principal
executive office of the corporation, the notice need not
specify the place of the meeting. Moreover, a notice of
special meeting need not state the purpose of such meeting,
and, unless indicated in the notice thereof, any and all
business may be transacted at a special meeting.
3.9 QUORUM. A majority of the authorized number of
directors shall constitute a quorum for the transaction of
business, except to fill vacancies in the board of directors
as provided in Section 3.4 and to adjourn as provided in
Section 3.11 of these Bylaws. Every act or decision done or
made by a majority of the directors present at a duly held
meeting at which a quorum is present shall be regarded as
the act of the board of directors, subject to the provisions
of the Articles of Incorporation and applicable law.
A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal
of directors, if any action taken is approved by at least a
majority of the required quorum for that meeting.
3.10 WAIVER OF NOTICE. Notice of a meeting need not be
given to any director (i) who signs a waiver of notice or a
consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or (ii) who
attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to such directors. The
transactions of any meeting of the board, however called and
noticed or wherever held, are 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 signs a written waiver of
notice. All such waivers shall be filed with the corporate
records or made part of the
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minutes of the meeting. A waiver of notice need not specify
the purpose of any regular or special meeting of the board
of directors.
3.11 ADJOURNMENT. A majority of the directors present,
whether or not constituting a quorum, may adjourn any
meeting to another time and place.
3.12 NOTICE OF ADJOURNMENT. Notice of the time and place
of holding an adjourned meeting need not be given if
announced unless the meeting is adjourned for more than
twenty-four (24) hours. If the meeting is adjourned for more
than twenty-four (24) hours, then notice of the time and
place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in
Section 3.8 of these Bylaws, to the directors who were not
present at the time of the adjournment.
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, provided that all
members of the board of directors individually or
collectively consent in writing to that action. Such action
by written consent shall have the same force and effect as a
unanimous vote of the board of directors. Such written
consent and any counterparts thereof shall be filed with the
minutes of the proceedings of the board.
3.14 ORGANIZATION. Meetings of the board of directors
shall be presided over by the chairman of the board, if any,
or in his or her absence by the chairman of the executive
committee, if any, or in his or her absence by the
president, if any, or in his or her absence by the executive
vice president. In the absence of all such directors, a
president pro tem chosen by a majority of the directors
present shall preside at the meeting. The secretary shall
act as secretary of the meeting, but in his or her absence
the chairman of the meeting may appoint any person to act as
secretary of the meeting.
3.15 FEES AND COMPENSATION OF DIRECTORS. Directors and
members of committees may receive such compensation, if any,
for their services and such reimbursement of expenses as may
be fixed or determined by resolution of the board of
directors. This Section 3.15 shall not be construed to
preclude any director from serving the corporation in any
other capacity as an officer, agent, employee or otherwise
and receiving compensation for those services.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS. The board of directors may
designate one (1) or more committees comprise of board
and/or non-board members to serve at the pleasure of the
board of directors. The board of directors may designate one
(1) or more persons as alternate members of any committee,
who may replace any absent member at any meeting of the
committee. Any committee, to the extent provided in the
resolution of the board, shall have all the authority of the
board, but no such committee shall have the power or
authority to (i) approve or adopt or recommend to the
shareholders any action or matter that requires the approval
of the shareholders or (ii) adopt, amend or repeal any Bylaw
of the corporation.
4.2 MEETINGS AND ACTION OF COMMITTEES. Meetings and
actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of
these Bylaws, Section 3.6 (place of meetings), Section 3.7
(regular meetings), Section 3.8 (special meetings and
notice), Section 3.9 (quorum), Section 3.10 (waiver of
notice), Section 3.11 (adjournment), Section 3.12 (notice of
adjournment), and Section 3.13 (action without meeting),
with such changes in the context of those Bylaws as are
necessary to substitute the committee and its members for
the board of directors and its members; provided, however,
that the time of regular meetings of committees may be
determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of
committees may also be called by resolution of the board of
directors, and that notice of special meetings of committees
shall also be given to all alternate members, who shall have
the right to attend all meetings of the committee.
<PAGE>
The board of directors may adopt rules for the government of
any committee not inconsistent with the provisions of these
Bylaws.
4.3 EXECUTIVE COMMITTEE. In the event that the board of
directors appoints an executive committee, such executive
committee, in all cases in which specific directions to the
contrary shall not have been given by the board of
directors, shall have and may exercise, during the intervals
between the meetings of the board of directors, all the
powers and authority of the board of directors in the
management of the business and affairs of the corporation
(except as provided in Section 4.1 hereof) in such manner as
the executive committee may deem in the best interests of
the corporation.
ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of this corporation shall
consist of a chief executive officer, president, one or more
vice presidents, a secretary and a chief financial officer
who shall be chosen by the Board of Directors and such other
officers, including but not limited to a chairman of the
board, a chairman of the executive committee and a treasurer
as the board of directors shall deem expedient, who shall be
chosen in such manner and hold their offices for such terms
as the board of directors may prescribe. Any two or more of
such offices may be held by the same person. The board of
directors may designate one or more vice presidents as
executive vice presidents or senior vice presidents. Either
the chairman of the board, the chairman of the executive
committee, or the chief executive officer, as the board of
directors may designate from time to time, shall be the
chief executive officer of the corporation. The board of
directors may from time to time designate the president or
any executive vice president as the chief operating officer
of the corporation. Any vice president, treasurer or
assistant treasurer, or assistant secretary respectively may
exercise any of the powers of the president, the chief
financial officer, or the secretary, respectively, as
directed by the board of directors and shall perform such
other duties as are imposed upon such officer by the Bylaws
or the board of directors.
5.2 ELECTION OF OFFICERS. In addition to officers
elected by the board of directors in accordance with
Sections 5.1 and 5.3, the corporation may have one or more
appointed vice presidents. Such vice presidents may be
appointed by the chairman of the board or the president and
shall have such duties as may be established by the chairman
or president. Vice presidents appointed pursuant to this
Section 5.2 may be removed in accordance with Section 5.4.
5.3 TERMS OF OFFICE AND COMPENSATION. The term of
office and salary of each of said officers and the manner
and time of the payment of such salaries shall be fixed and
determined by the board of directors and may be altered by
said board from time to time at its pleasure, subject to the
rights, if any, of said officers under any contract of
employment.
5.4 REMOVAL; RESIGNATION OF OFFICERS AND VACANCIES. Any
officer of the corporation may be removed at the pleasure of
the board of directors at any meeting or by vote of
shareholders entitled to exercise the majority of voting
power of the corporation at any meeting or at the pleasure
of any officer who may be granted such power by a resolution
of the board of directors. Any officer may resign at any
time upon written notice to the corporation without
prejudice to the rights, if any, of the corporation under
any contract to which the officer is a party. If any vacancy
occurs in any office of the corporation, the board of
directors may elect a successor to fill such vacancy for
the remainder of the unexpired term and until a successor is
duly chosen and qualified.
5.5 CHAIRMAN OF THE BOARD. The chairman of the board,
if such an officer be elected, shall provide advisory
services to the chief executive officer when and as
requested by the chief executive officer; shall, if present,
preside at meetings of the board of directors and
shareholders; may call meeting of the shareholders and also
of the board of directors to be held, subject to the
limitations prescribed by law or by these Bylaws, at such
times and at such places as the chairman may deem proper;
and shall exercise and
<PAGE>
perform such other duties as may from time to time be
requested by the board of directors. The chairman of the
board shall report to the board of directors.
5.6 CHAIRMAN OF EXECUTIVE COMMITTEE. The chairman of
the executive committee, if there be one, shall have the
power to call meetings of the shareholders and also of the
board of directors to be held subject to the limitations
prescribed by law or by these Bylaws, at such times and at
such places as the chairman of the executive committee shall
deem proper. The chairman of the executive committee shall
have such other powers and be subject to such other duties
as the board of directors may from time to time prescribe.
5.7 CHIEF EXECUTIVE OFFICER. The powers and duties of
the chief executive officer are: (a) To have and provide
general supervision, direction and control of the
corporation's business and its officers. (b) To call
meetings of the board of directors to be held, subject to
the limitations prescribed by law or by these Bylaws, at
such times and at such places as the president shall deem
proper. (c) To affix the signature of the corporation to all
deeds, conveyances, mortgages, leases, obligations, bonds,
certificates and other papers and instruments in writing
which have been authorized by the board of directors or
which, in the judgment of the president, should be executed
on behalf of the corporation, and to sign certificates for
shares of stock of the corporation. (d) To have such other
powers and be subjected to such other duties as the board of
directors may from time to time prescribe.
5.8 PRESIDENT. If no chief executive officer shall be
elected, the president shall have the powers and duties of
the chief executive officer as set forth in Section 5.7. In
the absence of the chief executive officer, if one shall be
elected, the President shall preside at all meetings of the
shareholders and directors, and the president shall have the
general and active management of the business of the
Corporation and shall see that all orders of the board of
directors are carried into effect. In addition, the
president shall perform whatever duties and shall exercise
whatever powers given to him by the board of directors.
5.9 VICE PRESIDENTS. In case of the absence, disability
or death of the president, the elected vice president, or
one of the elected vice presidents, shall exercise all the
powers and perform all the duties of the president. If there
is more than one elected vice president, the order in which
the elected vice presidents shall succeed to the powers and
duties of the president shall be as fixed by the board of
directors. The elected vice president or elected vice
presidents shall have such other powers and perform such
other duties as may be granted or prescribed by the board
of directors. Vice presidents appointed pursuant to Section
5.2 shall have such powers and duties as may be fixed by the
chairman or president, except that such appointed vice
presidents may not exercise the powers and duties of the
president.
5.10 SECRETARY. The powers and duties of the secretary
are:
(a) To keep a book of minutes at the principal
office of the corporation, or such other place as the
board of directors may order, of all meetings of its
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.
(b) To keep the seal of the corporation and affix
the same to all instruments which may require it.
(c) To keep or cause to be kept at the principal
office of the corporation, or at the office of the
transfer agent or agents, a share register, or
duplicate share registers, showing the names of the
shareholders and their addresses, the number of and
classes of shares, and the number and date of
cancellation of every certificate surrendered for
cancellation.
<PAGE>
(d) To keep a supply of certificates for shares of
the corporation, to fill in all certificates issued,
and to make a proper record of each such issuance;
provided, that so long as the corporation shall have
one or more duly appointed and acting transfer agents
of the shares, or any class or series of shares, of the
corporation, such duties with respect to such shares
shall be performed by such transfer agent or transfer
agents.
(e) To transfer upon the share books of the
corporation any and all shares of the corporation;
provided, that so long as the corporation shall have
one or more duly appointed and acting transfer agents
of the shares, or any class or series of shares, of the
corporation, such duties with respect to such shares
shall be performed by such transfer agent or transfer
agents, and the method of transfer of each certificate
shall be subject to the reasonable regulations of the
transfer agent to which the certificate is presented
for transfer, and also, if the corporation then has one
or more duly appointed and acting registrars, to the
reasonable regulations of the registrar to which the
new certificate is presented for registration; and
provided, further that no certificate for shares of
stock shall be issued or delivered or, if issued or
delivered, shall have any validity whatsoever until and
unless it has been signed or authenticated in the
manner provided in Section 8.5 hereof.
(f) To make service and publication of all notices
that may be necessary or proper, and without command or
direction from anyone. In case of the absence,
disability, refusal, or neglect of the secretary to
make service or publication of any notices, then such
notices may be served and/or published by the president
or a vice president, or by any person thereunto
authorized by either of them or by the board of
directors or by the holders of a majority of the
outstanding shares of the corporation.
(g) Generally to do and perform all such duties as
pertain to the office of secretary and as may be
required by the board of directors.
5.11 CHIEF FINANCIAL OFFICER. The powers and duties of
the chief financial officer are:
(a) To supervise the corporate-wide treasury
functions and financial reporting to external bodies.
(b) To have the custody of all funds, securities,
evidence of indebtedness and other valuable documents
of the corporation and, at the chief financial
officer's discretion, to cause any or all thereof to be
deposited for account of the corporation at such
depositary as may be designated from time to time by
the board of directors.
(c) To receive or cause to be received, and to
give or cause to be given, receipts and acquittances
for monies paid in for the account of the corporation.
(d) To disburse, or cause to be disbursed, all
funds of the corporation as may be directed by the
board of directors, taking proper vouchers for such
disbursements.
(e) To render to the president and to the board of
directors, whenever they may require, accounts of all
transactions and of the financial condition of the
corporation.
(f) Generally to do and perform all such duties as
pertain to the office of chief financial officer and as
may be required by the board of directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
OTHER AGENTS
<PAGE>
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. The
corporation shall, to the maximum extent and in the manner
permitted by the Colorado Business Corporation Act, indemnify
each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements
and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact
that such person is or was an agent of the corporation;
provided, however, that the corporation may modify the extent
of such indemnification by individual contracts with its
directors and executive officers and, provided, further, that
the corporation shall not be required to indemnify any
director or officer in connection with any proceeding (or
part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii)
the proceeding was authorized in advance by the board of
directors of the corporation, (iii) such indemnification is
provided by the corporation, in its sole discretion, pursuant
to the powers vested in the corporation under the Colorado
Business Corporation Act or (iv) such indemnification is
required to be made pursuant to an individual contract. For
purposes of this Section 6.1, a "director" or "officer" of
the corporation includes any person (i) who is or was a
director or officer of the corporation, (ii) who is or was
serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was a director or
officer of a corporation which was a predecessor corporation
of the corporation or of another enterprise at the request of
such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS. The corporation shall
have the power, to the maximum extent and in the manner
permitted by the Colorado Business Corporation Act, to
indemnify each of its employees and agents (other than
directors and officers) against expenses (including
attorneys' fees), judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with
any proceeding, arising by reason of the fact that such
person is or was an agent of the corporation. For purposes
of this Section 6.2, an "employee" or "agent" of the
corporation (other than a director or officer) includes any
person (i) who is or was an employee or agent of the
corporation, (ii) who is or was serving at the request of
the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation.
6.3 INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising
out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her
against such liability under the provisions of the Colorado
Business Corporation Act.
6.4 EXPENSES. The corporation shall advance to any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or
was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture,
trust or other enterprise, prior to the final disposition of
the proceeding, promptly following request therefor, all
expenses incurred by any director or officer in connection
with such proceeding, upon receipt of an undertaking by or
on behalf of such person to repay said amounts if it should
be determined ultimately that such person is not entitled to
be indemnified under this Bylaw or otherwise; provided,
however, that the corporation shall not be required to
advance expenses to any director or officer in connection
with any proceeding (or part thereof) initiated by such
person unless the proceeding was authorized in advance by
the board of directors of the corporation. Notwithstanding
the foregoing, unless otherwise determined pursuant to
Section 6.5, no advance shall be made by the corporation to
an officer of the corporation (except by reason of the fact
that such officer is or was a director of the corporation in
which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative
or investigative, if a determination is reasonably and
promptly made (i) by the board of directors by a majority
vote of a quorum consisting of directors who were not
parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum
<PAGE>
of disinterested directors so directs, by independent legal
counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the
corporation.
6.5 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on
any person by this Bylaw shall not be exclusive of any other
right which such person may have or hereafter acquire under
any statute, provision of the Articles of Incorporation,
Bylaws, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding
office. The corporation is specifically authorized to enter
into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the
Colorado Business Corporation Act.
6.6 SURVIVAL OF RIGHTS. The rights conferred on any
person by this Bylaw shall continue as to a person who has
ceased to be a director, officer, employee or other agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
6.7 AMENDMENTS. Any repeal or modification of this
Bylaw shall only be prospective and shall not affect the
rights under this Bylaw in effect at the time of the alleged
occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the
corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS. The
corporation shall, either at its principal executive office
or at such place or places as designated by the board of
directors, keep a record of its shareholders listing their
names and addresses and the number and class of shares held
by each shareholder, a copy of these Bylaws as amended to
date, accounting books and other records. Any shareholder of
record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have
the right during the usual hours for business to inspect for
any proper purpose the corporation's stock ledger, a list of
its shareholders, and its other books and records and to
make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest
as a shareholder. In every instance where an attorney or
other agent is the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney
or other agent to so act on behalf of the shareholder. The
demand under oath shall be directed to the corporation at
its registered office in Colorado or at its principal place
of business.
7.2 INSPECTION BY DIRECTORY. Any director shall have
the right to examine the corporation's stock ledger, a list
of its shareholders and its other books and records for a
purpose reasonably related to his or her position as a
director.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
president or any other officer of this corporation
authorized by the board of directors is 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 may be exercised
either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly
executed by such person having the authority.
<PAGE>
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND
VOTING. For purposes of determining the shareholders
entitled to receive payment of any dividend or other
distribution or allotment of any rights or the shareholders
entitled to exercise any rights in respect of any other
lawful action, the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) days
before any such action. In that case, only shareholders of
record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment
of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of
the corporation after the record date so fixed, except as
otherwise provided in the Articles of Incorporation, by
these Bylaws, by agreement or by law. If the board of
directors does not so fix a record date, then the record
date for determining shareholders for any such purpose shall
be at the close of business on the day on which the board
adopts the applicable resolution or the sixtieth (60th) day
before the date of that action, whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS. From
time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all
checks, drafts, other orders for payment of money, notes or
other evidences of indebtedness that are issued in the name
of or payable to the corporation, and only the persons so
authorized shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED.
The board of directors, except as otherwise provided in
these Bylaws, may authorize any officer or officers, or
agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation;
such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of
directors or within the agency power of an officer, 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
for any amount.
8.4 FISCAL YEAR. The fiscal year of this corporation
shall begin on the first day of July of each year and end on
the last day of June of the following year.
8.5 STOCK CERTIFICATES. There shall be issued to each
holder of fully paid shares of the capital stock of the
corporation a certificate or certificates for such shares.
Every holder of shares of the corporation shall be entitled
to have a certificate signed by, or in the name of the
corporation by, the chairman of the board of directors, or
the president or a vice president, and by the treasurer or
an assistant treasurer, or the secretary or an assistant
secretary of such corporation representing the number of
shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate
has 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 he or she were such
officer, transfer agent or registrar at the date of issue.
8.6 SPECIAL DESIGNATION ON CERTIFICATES. If the
corporation is authorized to issue more than one class of
stock or more than one series of any class, then the powers,
the designations, the preferences, and the relative,
participating, optional or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face
or back of the certificate that the corporation shall issue
to represent such class or series of stock; provided,
however, that, except as otherwise provided in the Colorado
Business Corporation Act, in lieu of the foregoing
requirements there may be set forth on the face or back of
the certificate that the corporation shall issue to
represent such class or series of stock a statement that the
corporation will furnish without charge to each shareholder
who so requests the powers, the designations, the
preferences, and the relative, participating, optional or
other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
8.7 LOST CERTIFICATES. The corporation may issue a new
share certificate or new certificate for any other security
in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the
corporation may require the owner of the lost, stolen or
destroyed certificate or
<PAGE>
the owner's legal representative to give the corporation a
bond (or other adequate security) sufficient to indemnify it
against any claim that may be made against it (including any
expense or liability) on account of the alleged loss, theft
or destruction of any such certificate or the issuance of
such new certificate. The board of directors may adopt such
other provisions and restrictions with reference to lost
certificates, not inconsistent with applicable law, as it
shall in its discretion deem appropriate.
8.8 CONSTRUCTION; DEFINITIONS. Unless the context
requires otherwise, the general provisions, rules of
construction, and definitions in the Colorado Business
Corporation Act shall govern the construction of these
Bylaws. Without limiting the generality of this provision,
the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a
corporation and a natural person.
8.9 PROVISIONS ADDITIONAL TO PROVISIONS OF LAW. All
restrictions, limitations, requirements and other provisions
of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law
applicable to the subject matter thereof and shall be fully
complied with in addition to the said provisions of law
unless such compliance shall be illegal.
8.10 PROVISIONS CONTRARY TO PROVISIONS OF LAW. Any
article, section, subsection, subdivision, sentence, clause
or phrase of these Bylaws which upon being construed in the
manner provided in Section 8.9 hereof, shall be contrary to
or inconsistent with any applicable provisions of law, shall
not apply so long as said provisions of law shall remain in
effect, but such result shall not affect the validity or
applicability of any other portions of these Bylaws, it
being hereby declared that these Bylaws would have been
adopted and each article, section, subsection, subdivision,
sentence, clause or phrase thereof, irrespective of the fact
that any one or more articles, sections, subsections,
subdivisions, sentences, clauses or phrases is or are
illegal.
8.11 NOTICES. Any reference in these Bylaws to the time
a notice is given or sent means, unless otherwise expressly
provided, the time a written notice by mail is deposited in
the United States mails, postage prepaid; or the time any
other written notice is personally delivered to the
recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving
the notice by electronic means, to the recipient; or the
time any oral notice is communicated, in person or by
telephone or wireless, to the recipient or to a person at
the office of the recipient who the person giving the notice
has reason to believe will promptly communicate it to the
recipient.
ARTICLE IX
AMENDMENTS
Subject to Section 6.7 hereof, the original or other
bylaws of the corporation may be adopted, amended or
repealed by the board of directors. Whenever an amendment
or new bylaw is adopted, it shall be copied in the book of
bylaws with the original bylaws, in the appropriate place.
If any bylaw is repealed, the fact of repeal with the date
of the meeting at which the repeal was enacted or the filing
of the operative written consent(s) shall be stated in said
book.
