EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
AMENDED AND RESTATED
BYLAWS
OF
LONE WOLF ENERGY, INC.
(the "Corporation")
ARTICLE I
Offices and Agents
A. Principal Office. The principal office of the Corporation shall be
located within or without the State of Colorado, as may be subsequently
designated by the Board of Directors of the Corporation ("Board of Directors").
The Corporation may have other offices and places of business at such places
within or without the State of Colorado as shall be determined by the Board of
Directors, or as the business of the Corporation may require from time to time.
B. Registered Office. The registered office of the Corporation required by
the Colorado Business Corporation Act must be continually maintained in the
State of Colorado, and it may be, but need not be, identical with the principal
office, if located in the State of Colorado. The address of the registered
office of the Corporation may be changed from time to time as provided by the
Colorado Business Corporation Act.
C. Registered Agent. The Corporation shall maintain a registered agent in
the State of Colorado as required by the Colorado Business Corporation Act. Such
registered agent may be changed from time to time as provided by the Colorado
Business Corporation Act.
ARTICLE II
Shareholders Meetings
A. Annual Meetings. The annual meeting of the shareholders shall be held
for the purpose of electing directors and transacting such other corporate
business as may come before the meeting. The date, time and place of the annual
meeting shall be determined by resolution of the Board of Directors. If the
election of directors is not held as provided herein at any annual meeting of
the shareholders, or at any adjournment thereof, the Board of Directors shall
cause the election to be held at a special meeting of the shareholders as soon
thereafter as it may conveniently be held.
Notice of an annual meeting need not include a description of the purpose
or purposes of the meeting except when the purpose of the meeting is to
consider: (i) an amendment to the Articles of Incorporation of the Corporation,
(ii) a merger or share exchange in which the Corporation is a party and, with
respect to a share exchange, in which the Corporation's shares
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will be acquired, (iii) the sale, lease, exchange or other disposition, other
than in the usual and regular course of business, of all or substantially all of
the property of the Corporation or of another entity which the Corporation
controls, in each case with or without goodwill, (iv) the dissolution of the
Corporation or (v) any other purpose for which a statement of purpose is
required by the Colorado Business Corporation Act.
B. Special Meetings. Unless otherwise prescribed by the Colorado Business
Corporation Act, special meetings of the shareholders of the Corporation may be
called at any time by the chairman of the Board of Directors, by the chief
executive officer, by the president, by resolution of the Board of Directors or
upon receipt of one or more written demands for a meeting, stating the purpose
or purposes for which it is to be held, signed and dated by the holders of at
least ten percent (10%) of all votes entitled to be cast on any issue proposed
to be considered at the meeting. Notice of a special meeting shall include a
description of the purpose or purposes for which the meeting is called.
C. Place of Meeting. The annual meeting of the shareholders of the
Corporation may be held at any place, either within or without the State of
Colorado, as may be designated by the Board of Directors. Except as limited by
the following sentence, the person or persons calling any special meeting of the
shareholders may designate any place, within or without the State of Colorado,
as the place for the meeting. If no designation is made or if a special meeting
shall be called other than by the Board of Directors, the chairman of the Board
of Directors, the chief executive officer or the president, the place of meeting
shall be the principal office of the Corporation. A waiver of notice signed by
all shareholders entitled to vote at a meeting may designate any place as the
place for holding such meeting.
D. Notice of Meeting. Except as otherwise provided in these Bylaws or by
the Colorado Business Corporation Act, notice stating the date, time and place
of the meeting shall be given no fewer than ten (10) and no more than sixty (60)
days before the date of the meeting, except that if the number of authorized
shares is to be increased, at least thirty (30) days' notice shall be given.
Notice shall be given personally or by mail, private carrier, telephone (if
reasonable under the circumstances), telegraph, teletype, electronically
transmitted facsimile or other form of wire or wireless communication by or at
the direction of the chief executive officer, the president, the secretary, or
the officer or other person calling the meeting to each shareholder of record
entitled to vote at such meeting. If mailed and if in a comprehensible form,
such notice shall be deemed to be given and effective when deposited in the
United States mail, addressed to the shareholder at his or her address as it
appears in the Corporation's current record of shareholders, with postage
prepaid. If notice is given other than by mail, and provided that the notice is
in comprehensible form, the notice is given and effective on the date received
by the shareholder. No notice need be sent to any shareholder if three
successive notices mailed to the last known address of such shareholder have
been returned as undeliverable until such time as another address for such
shareholder is made known to the Corporation by such shareholder.
When a meeting is adjourned to a different date, time or place, notice need
not be given of the new date, time or place if the new date, time or place is
announced at the meeting before adjournment. At the adjourned meeting, the
Corporation may transact any business which might
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have been transacted at the original meeting. If the adjournment is for more
than 120 days, or if a new record date is fixed for the adjourned meeting, a new
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting as of the new record date.
E. Waiver of Notice. Any shareholder, either before or after any
shareholders' meeting, may waive in writing notice of the meeting, and his
waiver shall be deemed the equivalent of giving notice. By attending a meeting,
a shareholder waives his right to object to lack of notice or to a defective
notice unless the shareholder objects to the holding of such meeting or the
transacting of business at such meeting at the beginning of such meeting, and
waives his right to object to consideration at such meeting of a particular
matter not within the purpose or purposes described in the meeting notice,
unless such shareholder objects to considering the matter when it is presented.
F. Fixing of Record Date. The Board of Directors of the Corporation may
provide that the stock transfer books shall be closed for a stated period, but
not to exceed, in any case, fifty (50) days. If the stock transfer books shall
be closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for at least
ten (10) days immediately preceding said meeting. The Board of Directors may fix
in advance a date as the record date for the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive payment of any dividend
or in order to make a determination of shareholders for any other proper
purpose, such date in any case to be not more than seventy (70) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the date
on which the particular action requiring such determination of shareholders is
to be taken. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this Section such determination shall apply to any adjournment thereof.
Notwithstanding the foregoing, the record date for determining the
shareholders entitled to take action without a meeting or entitled to be given
notice of action so taken shall be the date a writing upon which the action is
taken is first received by the Corporation. The record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of the demands pursuant to which the meeting is called.
G. Voting List. The officer or agent having charge of the stock transfer
books for shares of the Corporation shall make, at least ten (10) days before
each meeting of shareholders, a complete list of the shareholders entitled to
vote at such meeting (or any adjournment thereof) arranged in alphabetical order
by voting groups and within each voting group by class or series, with the
address of and the number of shares held by each, which list, for a period of
ten (10) days prior to such meeting, shall be kept on file at the principal
office of the Corporation, whether within or without the State of Colorado. A
shareholder, his agent or attorney, may inspect and copy the list during regular
business hours and during the period it is available for
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inspection, provided, (i) the shareholder has been a shareholder for at least
three (3) months immediately preceding the demand or holds at least five percent
(5%) of all outstanding shares of any class of shares as the date of the demand,
(ii) the demand is made in good faith and for a purpose reasonably related to
the demanding shareholder's interest as a shareholder, (iii) the shareholder
describes with reasonable particularity the purpose and records the shareholder
desires to inspect, (iv) the records are directly connected with the described
purpose and (v) the shareholder pays a reasonable charge covering the costs of
labor and material for such copies, not to exceed the cost of production and
reproduction. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
for any purpose germane to the meeting during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders.
H. Proxies. At all meetings of shareholders, a shareholder may vote by
proxy by signing an appointment form either personally or by his duly authorized
attorney-in-fact. A shareholder may also appoint a proxy by transmitting or
authorizing the transmission of a telegram, teletype, or other electronic
transmission providing a written statement of the appointment to the proxy, to a
proxy solicitor, proxy support service organization or other person duly
authorized by the proxy to receive appointments as agent for the proxy, or to
the Corporation. The transmitted appointment shall set forth or be transmitted
with written evidence from which it can be determined that the shareholder
transmitted or authorized the transmission of the appointment. The proxy
appointment form shall be filed with the Secretary of the Corporation by or at
the time of the meeting. The appointment of a proxy is effective when received
by the Corporation and is valid for eleven (11) months unless a different period
is expressly provided in the appointment form.
Any complete copy, including an electronically transmitted facsimile, of an
appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the Corporation to
accept the proxy's appointment unless (i) the Corporation had notice that the
appointment was coupled with an interest and notice that the interest is
extinguished is received by the Secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the appointment
or (ii) other notice of the revocation of the appointment is received by the
Secretary or other officer or agent authorized to tabulate votes before the
proxy exercises his authority under the appointment. Other notice of revocation
may, in the discretion of the Corporation, be deemed to include the appearance
at a shareholders meeting of the shareholder who granted the proxy appointment
and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the Corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the Secretary or other officer
or agent authorized to tabulate votes before the proxy exercised his authority
under the appointment.
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The Corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder either personally or by the shareholder's attorney-in-fact,
notwithstanding that the revocation may be a breach of an obligation of the
shareholder to another person not to revoke the appointment.
A transferee for value of shares subject to an irrevocable appointment may
revoke the appointment if the transferee did not know of its existence when he
acquired the shares and the irrevocable appointment was not noted on the
certificate representing the shares.
Subject to the provisions of Article 11, Section J below or any express
limitation on the proxy's authority appearing on the appointment form, a
corporation is entitled to accept the proxy's vote or other action as that of
the shareholder making the appointment.
I. Voting Rights. Except to the extent that the voting rights of the shares
of any class or series are otherwise established, limited or denied by the
Articles of Incorporation and except as otherwise required by law, each
outstanding share, regardless of class, shall be entitled to one vote and each
fractional share is entitled to a corresponding fractional vote on each matter
submitted to a vote at a meeting of shareholders.
At each election for directors every shareholder of record entitled to vote
at such election shall have the right to vote in person or by proxy the number
of votes to which such shareholder is entitled for as many persons as there are
directors to be elected and for whose election he has a right to vote.
Cumulative voting shall not be permitted for any purpose.
Shares held by another corporation, if the majority of shares entitled to
vote for the election of directors of such other corporation are held by the
Corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares entitled to vote at any given time. Except as
provided in the preceding sentence, shares standing in the name of another
corporation, domestic or foreign, may be voted by such officer, agent or proxy
as the Bylaws of such corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such corporation may determine, or in
the absence of such determination, by the chief executive officer of such
corporation.
If shares having voting power stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants
in common, tenants by the entirety or otherwise, or if two or more persons have
the same fiduciary relationship respecting the same shares, voting with respect
to the shares shall have the following effect: (i) if only one person votes, his
act binds all; (ii) if two or more persons vote, but the vote is evenly split on
any particular matter, each faction may vote the shares in question
proportionately, or any person voting the shares of a beneficiary, if any, may
apply to any court of competent jurisdiction in the State of Colorado to appoint
an additional person to act with the persons voting the shares. The shares shall
then be voted as determined by a majority of such persons and the person
appointed by the court. If a tenancy is held in unequal interests, a majority or
even split for the purpose of this subsection shall be a majority or even split
in interest, except that the effects of voting stated above shall not be
applicable if the secretary of the Corporation is given written notice of
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alternative voting provisions and is furnished with a copy of the instrument or
order wherein the alternate voting provisions are stated.
Shares held by an administrator, executor, guardian or conservator may be
voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
J. Corporation's Acceptance of Votes. If the name signed on a vote,
consent, waiver, proxy appointment, or proxy appointment revocation corresponds
to the name of a shareholder, the Corporation, if acting in good faith, is
entitled to accept the vote, consent, waiver, proxy appointment, or proxy
appointment revocation and to give it effect as the act of the shareholder. If
the name signed on a vote, consent, waiver, proxy appointment, or proxy
appointment revocation does not correspond to the name of a shareholder, the
Corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment, or proxy appointment revocation and to
give it effect as the act of the shareholder if:
1. The shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity;
2. The name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the
Corporation requests, evidence of fiduciary status acceptable to the
Corporation has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
3. The name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the Corporation requests, evidence of
this status acceptable to the Corporation has been presented with respect
to the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
4. The name signed purports to be that of a pledgee, beneficial owner,
or attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory's authority to sign
for the shareholder has been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment revocation;
5. Two or more persons are the shareholder as cotenants or fiduciaries
and the name signed purports to be the name of at least one of the
cotenants or fiduciaries and the person signing appears to be acting on
behalf of all the cotenants or fiduciaries; or
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6. The acceptance of the vote, consent, waiver, proxy appointment or
proxy appointment revocation is otherwise proper under rules established by
the Corporation that are not inconsistent with the provisions of this
Section J.
The Corporation is entitled to reject a vote, consent, waiver, proxy
appointment, or proxy appointment revocation if the secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or
about the signatory's authority to sign for the shareholder.
The Corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, proxy appointment or proxy appointment revocation in
good faith and in accordance with the standards of this Section J are not
liable in damages for the consequences of the acceptance or rejection.
K. Quorum and Voting Requirements. Except as otherwise provided in the
Articles of Incorporation, the presence, in person or by proxy, of the holders
of a majority of the shares outstanding and entitled to vote shall constitute a
quorum at meetings of the shareholders. If a quorum is present, the affirmative
vote of a majority of the shares represented at the meeting and entitled to vote
on the subject matter shall be the act of the shareholders unless the vote of a
greater number or voting by classes is required by the Colorado Business
Corporation Act or the Articles of Incorporation. In the event any shareholders
withdraw from a duly organized meeting at which a quorum was initially present,
the remaining shares represented shall constitute a quorum for the purpose of
continuing to do business, and the affirmative vote of the majority of the
remaining shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the shareholders unless the vote of a greater number
or voting by classes is required by the Colorado Business Corporation Act or the
Articles of Incorporation.
L. Adjournments. If less than a quorum of shares entitled to vote is
represented at any meeting of the shareholders, a majority of the shares so
represented may adjourn the meeting from time to time without further notice,
for a period not to exceed one hundred twenty (120) days at any one adjournment.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. Any meeting of the shareholders may adjourn from time to
time until its business is completed.
M. Action by Shareholders Without Meeting. Any action required or permitted
to be taken at a shareholders' meeting may be taken without a meeting if all of
the shareholders entitled to vote thereon consent to such action in writing.
Action taken under this Section M shall be effective as of the date the last
writing necessary to effect the action is received by the Corporation, unless
all of the writings necessary to effect the action specify a later date as the
effective date of the action, in which case such later date shall be the
effective date of the action. If the Corporation received writings describing
and consenting to the action signed by all of the shareholders entitled to vote
with respect to the action, the effective date of the action may be any date
that is specified in all of the writings as the effective date of the action.
Any such writings may be received by the Corporation by electronically
transmitted facsimile or other form of wire or wireless communication providing
the Corporation with a complete copy thereof,
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including a copy of the signature thereto. Action taken under this Section M has
the same effect as action taken at a meeting of shareholders and may be
described as such in any document.
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section M may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, but only if such writing is
received by the Corporation before the effectiveness of the action.
N. Meetings by Telecommunication. Any or all of the shareholders may
participate in an annual or special shareholders' meeting by, or the meeting may
be conducted through the use of, any means of communication by which all persons
participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
Board of Directors
A. Number, Qualifications and Term of Office. Except as otherwise provided
in the Articles of Incorporation or the Colorado Business Corporation Act, the
business and affairs of the Corporation shall be managed by a Board of
Directors, consisting of at least one (1), but not more than five (5), members.
Each director shall be a natural person of the age of eighteen years or older,
but does not need to be a resident of the State of Colorado or a shareholder of
the Corporation. The Board of Directors, by resolution, may increase or decrease
the number of directors from time to time. Except as otherwise provided in these
Bylaws, each director shall be elected at each annual meeting of shareholders
and shall hold such office until the next annual meeting of shareholders and
until his successor shall be elected and shall qualify. No decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director.
Upon the filing of the Certificate of Merger effecting the merger of the
Corporation's wholly-owned subsidiary, Prestige Acquisition Corp., with and into
Prestige Investments, Inc.: (i) the number of directors of the Corporation shall
be set at five; (ii) of the five directors, Naylor Concrete Construction Co.,
Inc., Debra G. Morehead, Fireball Enterprises, L.L.C., Joey Alfred and Brian
Gustas (collectively, the "Prestige Shareholders") shall have the right to
nominate two directors, and Marc W. Newman, Douglas A. Newman, and Timothy P.
Apgood (collectively, the "Lone Wolf Group") shall have the right to nominate
three directors, and (iii) the Prestige Shareholders and the Lone Wolf Group
shall vote their respective shares of Common Stock in favor of the five
directors so nominated.
B. Performance of Duties. Pursuant to the provisions of the Colorado
Business Corporation Act, a director shall perform his duties as a director,
including his duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances.
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C. Vacancies. Any director may resign at any time by giving written notice
to the chairman of the Board of Directors and to the chief executive officer,
president or secretary of the Corporation. A resignation of a director is
effective when the notice is received by the Corporation unless the notice
specifies a later effective date. Unless otherwise specified in the notice, the
acceptance of such resignation by the Corporation shall not be necessary to make
it effective. Any vacancy on the Board of Directors may be filled by the
affirmative vote of a majority of the remaining Board of Directors even if less
than a quorum is remaining in office. A director elected to fill a vacancy shall
be elected for the unexpired term of his predecessor in office. Any directorship
to be filled by reason of an increase in the number of directors shall be filled
by the affirmative vote of a majority of the directors then in office or by an
election at an annual meeting or special meeting of shareholders called for that
purpose. A director elected to fill a position resulting from an increase in the
number of directors shall hold office until the next annual meeting of
shareholders and until his or her successor has been elected and qualified.
D. Removal. At a meeting of shareholders called expressly for that purpose,
the entire Board of Directors or any individual directors may be removed from
office without assignment of cause by the vote of the majority of the shares
entitled to vote an election of directors.
E. Removal of Directors by Judicial Proceeding. A director may be removed
by the District Court of the Colorado County where the principal office is
located or if the Corporation has no principal office in the State of Colorado,
by the District Court of the Colorado county in which its registered office is
located, upon a finding by the District Court that the director engaged in
fraudulent or dishonest conduct or gross abuse of authority or discretion with
respect to the Corporation and that removal is in the best interests of the
Corporation. The judicial proceeding may be commenced either by the Corporation
or by shareholders holding at least ten percent (10%) of the outstanding shares
of any class.
F. Compensation. By resolution of the Board of Directors, any director may
be paid any one or more of the following: his expenses, if any, of attendance at
meetings; a fixed sum for attendance at each meeting; a stated salary as
director; or such other compensation as the Corporation and the director may
reasonably agree upon. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
Meetings of the Board
A. Place of Meetings. The regular or special meetings of the Board of
Directors or of any committee designated by the Board shall be held at the
principal office of the Corporation or at any other place within or without the
State of Colorado that a majority of the Board of Directors or of any such
committee, as the case may be, may designate from time to time by resolution.
B. Regular Meetings. The Board of Directors shall meet each year
immediately before or after and at the same place as the annual meeting of the
shareholders for the purpose of
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electing officers and transacting such other business as may come before the
meeting. The Board of Directors or any committee designated by the Board may
provide, by resolution, for the holding of additional regular meetings without
other notice than such resolution.
C. Special Meetings. Special meetings of the Board of Directors or of any
committee designated by the Board may be called at any time by the chairman of
the Board, if any, by the chief executive officer, or by three or more members
of the Board of Directors or of any such committee, as the case may be, provided
that if the Board of Directors or any such committee consists of less than four
members, then a special meeting of the Board of Directors or such committee may
be called by a majority of the members thereof.
D. Notice of Meetings. Notice of the regular meetings of the Board of
Directors or of any committee designated by the Board need not be given. Except
as otherwise provided by these Bylaws or the laws of the State of Colorado,
written notice of each special meeting of the Board of Directors or of any such
committee setting forth the time and the place of the meeting shall be given to
each director not less than one (1) day prior to the date and time fixed for the
meeting. Notice of any special meeting may be either personally delivered or
mailed to each director at his business address, by telephone (if reasonable
under the circumstances) or by notice transmitted by telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communication. If mailed, such notice shall be deemed to be given and to be
effective on the earlier of (i) three (3) days after such notice is deposited in
the United States mail properly addressed, with postage prepaid, or (ii) the
date shown on the return receipt if mailed by registered or certified mail
return receipt requested. If notice be given by telephone (if reasonable under
the circumstances), telex, electronically transmitted facsimile or other similar
form of wire or wireless communication, such notice shall be deemed to be given
and to be effective when sent, and with respect to a telegram, such notice shall
be deemed to be given and to be effective when the telegram is delivered to the
telegraph company. If a director has designated in writing one or more
reasonable addresses or facsimile numbers for delivery of notice to him, notice
sent by mail, telegraph, telex, electronically transmitted facsimile or other
form of wire or wireless communication shall not be deemed to have been given or
to be effective unless sent to such addresses or facsimile numbers, as the case
may be. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
E. Waiver of Notice. A director may, in writing, waive notice of any
special meeting of the Board of Directors or of any committee designated by the
Board either before, at, or after the meeting and his waiver shall be deemed the
equivalent of giving notice. Such waiver shall be delivered to the Corporation
for filing with the corporate records. Attendance or participation of a director
at a meeting waives any required notice of that meeting unless at the beginning
of the meeting or promptly upon the director's arrival, the director objects to
holding the meeting or transacting business at the meeting because of lack of
notice or defective notice and does not thereafter vote for or assent to action
taken at the meeting.
F. Quorum. At meetings of the Board of Directors or of any committee
designated by the Board a majority of the number of directors fixed by these
Bylaws, or a majority of the members of any such committee, as the case may be,
shall be necessary to constitute a quorum
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for the transaction of business. If the number of directors is not fixed, then a
majority of the number in office immediately before the meeting begins, shall
constitute a quorum. If a quorum is present, the act of the majority of
directors present shall be the act of the Board of Directors or of any such
committee, as the case may be, unless the act of a greater number is required by
these Bylaws, the Articles of Incorporation or the Colorado Business Corporation
Act.
G. Presumption of Assent. A director who is present at a meeting of the
Board of Directors or a committee thereof when action is taken is deemed to have
assented to the action taken unless:
1. the director objects at the beginning of such meeting or promptly
upon his arrival, to the holding of the meeting or the transacting of
business at the meeting and does not thereafter vote for or assent to any
action taken at the meeting;
2. the director contemporaneously requests that his dissent or
abstention as to any specific action taken be entered in the minutes of
such meeting; or
3. the director causes written notice of his dissent or abstention as
to any specific action to be received by the chairman of the Board, if any,
or the presiding officer of such meeting before its adjournment or to the
secretary within 15 minutes after adjournment of such meeting.
The right of dissent or abstention as to a specific action taken in a
meeting of a Board or a committee thereof is not available to a director
who votes in favor of the action taken.
H. Executive Committee; Other Committees. The Board of Directors may, by a
resolution adopted by a majority of the full Board of Directors, designate one
(1) or more of its members to constitute an executive committee and one or more
other committees, each of which shall have and may exercise all of the authority
of the Board of Directors or such lesser authority as may be set forth in said
resolution; except that no such committee shall have the authority of the Board
of Directors to: (i) declare dividends or distributions; (ii) approve or
recommend to shareholders actions or proposals required by the Colorado Business
Corporation Act to be approved by shareholders; (iii) fill vacancies on the
Board of Directors or any committee thereof; (iv) adopt, amend, or repeal these
Bylaws; (v) approve a plan of merger not requiring shareholder approval; (vi)
reduce earned or capital surplus; (vii) authorize or approve the reacquisition
of shares unless pursuant to a general formula method specified by the Board of
Directors; or (viii) authorize or approve the issuance or sale of, or any
contract to issue or sell, shares or designate the terms of a series of a class
of shares, except that the Board of Directors, having acted regarding general
authorization for the issuance or sale of shares or any contract therefor, may
pursuant to a general formula or method specified by the Board of Directors by
resolution or by adoption of a stock option or other plan, authorize a committee
to fix the terms of any contract for the sale of the shares and to fix the terms
upon which such shares may be issued or sold, including, without limitation, the
price, the dividend rate, provisions for redemption, sinking fund, conversion,
or voting or preferential rights, and provisions for other features of a class
of shares or a series of a class of shares, with full power in such committee to
adopt any final resolution setting forth all terms thereof and to authorize the
statement of the
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terms of a series for filing with the Secretary of State of the State of
Colorado under the Colorado Business Corporation Act. If any such delegation of
the authority of the Board of Directors is made as provided herein, all
references to the Board of Directors contained in these Bylaws, the Articles of
Incorporation, the Colorado Business Corporation Act or any other applicable law
or regulation relating to the authority so delegated shall be deemed to refer to
such committee.
Neither the designation of any such committee, the delegation of authority
to such committee, nor any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the Board of Directors, not a
member of the committee in question, with his responsibility to act in good
faith, in a manner he reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
I. Informal Action by Directors. Any action required or permitted be taken
at a Board of Directors' meeting or a meeting of any committee thereof may be
taken without a meeting if all members thereof consent to such action in writing
and such writing is delivered to the secretary of the Corporation for inclusion
in the minutes or for filing with the corporate records. Action taken under this
Section I is effective at the time the last director signs a writing describing
the action taken unless the directors establish a different effective date, and
unless, before such time, a director has revoked his consent by a writing signed
by the director and received by the chief executive officer and secretary.
Action taken pursuant to this Section I has the same effect as action taken at a
meeting of the directors or committee members and may be described as such in
any document.
J. Telephonic Meetings. One or more members of the Board of Directors or
any committee designated by the Board of Directors may participate in a regular
or special meeting by or conduct the meeting through the use of any means of
communication by which all directors participating may hear each other during
the meeting. A director participating in a meeting by this means is deemed to be
present in person at the meeting.
ARTICLE V
Standards of Conduct
In discharging his duties, a director or officer is entitled to rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by (i) one or more officers
or employees of the Corporation whom the director or officer reasonably believes
to be reliable and competent in the matters presented, (ii) legal counsel, a
public accountant, or other person as to matters which the director or officer
reasonably believes to be within such persons' professional or expert
competence, or (iii) in the case of a director, a committee of the Board of
Directors of which the director is not a member if the director reasonably
believes the committee merits confidence.
A director or officer is not liable as such to the Corporation or its
shareholders for any action he takes or omits to take as a director or officer,
as the case may be, if, in connection with
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such action or omission, he performed the duties of the position in compliance
with this Article V.
ARTICLE VI
Officers and Agents
A. General. The officers of the Corporation shall consist of, in the
discretion of the Board of Directors, a chairman of the Board, a chief executive
officer, a president, a secretary and a treasurer; in addition, one or more vice
presidents, and such other officers, assistant officers, agents and employees
that the Board of Directors may from time to time deem necessary may be elected
by the Board of Directors or be appointed in a manner prescribed by the Board of
Directors. Two or more offices may be held by the same person. Officers shall
hold office until their successors are chosen and have qualified, unless they
are sooner removed from office as provided in these Bylaws. All officers of the
Corporation shall be natural persons of the age of eighteen years or older.
Officers of the Corporation need not be residents of the State of Colorado or
directors or shareholders of the Corporation.
B. General Duties. All officers and agents of the Corporation, as between
themselves and the Corporation, shall have such authority and shall perform such
duties in the management of the Corporation as may be provided in these Bylaws
or as may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws. In all cases where the duties of any officer, agent or
employee are not prescribed by the Bylaws or by the Board of Directors, such
officer, agent or employee shall follow the orders and instructions of the chief
executive officer.
C. Vacancies. When a vacancy occurs in one of the executive offices by
reason of death, resignation or otherwise, it shall however be filled by a
resolution of the Board of Directors. The officer so selected shall hold office
until his successor is chosen and qualified.
D. Salaries. The salaries of the officers, agents and employees of the
Corporation may be fixed by the Board of Directors, or by any committee
designated by the Board of Directors or, in the absence of contrary resolution
or action by the Board of Directors, by the chief executive officer.
E. Resignation. An officer may resign at any time by giving written notice
of resignation to the chief executive officer of the Corporation. A resignation
of an officer is effective when the notice is received by the Corporation unless
the notice specifies a later effective date. If a resignation is made effective
at a later date, the Board of Directors may permit the officer to remain in
office until the effective date and may fill the pending vacancy before the
effective date if the Board of Directors provides that the successor does not
take office until the effective date, or the Board of Directors may remove the
officer at any time before the effective date and may fill the resulting
vacancy.
F. Removal. Any officer, agent or employee of this Corporation may be
removed by the Board of Directors or the chief executive officer whenever in its
judgment the best interests
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of the Corporation may be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer, agent or employee shall not, of itself, create
contract rights.
G. Chairman of the Board. The chairman of the Board, if any, shall preside
as chairman at meetings of the shareholders and the Board of Directors. He
shall, in addition, have such other duties as the Board of Directors may
prescribe that he perform. At the request of the chief executive officer, the
chairman of the Board may, in the case of the chief executive officer's absence
or inability to act, temporarily act in his place. In the case of death of the
chief executive officer or in the case of his absence or inability to act
without having designated the chairman of the Board to act temporarily in his
place, the chairman of the Board shall perform the duties of the chief executive
officer, unless the Board of Directors, by resolution, provides otherwise. If
the chairman of the Board shall be unable to act in place of the chief executive
officer, the president may exercise such powers and perform such duties as
provided below.
H. Chief Executive Officer. The chief executive officer shall, subject to
the direction and supervision of the Board of Directors, be the most senior
officer of the Corporation and shall have primary, general and active control of
its affairs and business and general supervision of its officers, agents and
employees. He shall have authority to expend Corporation funds, to incur debt on
behalf of the Corporation, and to acquire and dispose of property, real and
personal, tangible and intangible. In the event the position of chairman of the
Board shall not be occupied or the chairman shall be absent or otherwise unable
to act, the chief executive officer shall preside at meetings of the
shareholders and directors and shall discharge the duties of the presiding
officer. He shall, unless otherwise directed by the Board of Directors, attend
in person or by substitute appointed by him, or shall execute on behalf of the
Corporation written instruments appointing a proxy or proxies to represent the
Corporation at all meetings of the shareholders of any other corporation in
which the Corporation shall hold any stock. He may, on behalf of the
Corporation, in person or by substitute or by proxy, execute written waivers of
notice and consents with respect to any such meetings. At all such meetings and
otherwise, the chief executive officer, in person or by substitute or by proxy
as aforesaid, may vote the stock so held by the Corporation and may execute
written consents and other instruments with respect to such stock and may
exercise any and all rights and powers incident to the ownership of said stock,
subject however to the instructions, if any, of the Board of Directors. The
chief executive officer shall have custody of the treasurer's bond, if any.
I. President. The president shall assist the chief executive officer, as
directed by the Board of Directors or the chief executive officer, and shall
perform such duties as may be assigned to him from time to time by the Board of
Directors or the chief executive officer. If the office of chief executive
officer is vacant, the president shall have the powers and perform the duties of
chief executive officer until such vacancy is filled by the Board of Directors.
J. Vice Presidents. Each vice president shall have such powers and perform
such duties as the Board of Directors may from time to time prescribe or as the
chief executive officer may from time to time delegate to him. At the request of
the chief executive officer, in the case of the president's absence or inability
to act, any vice president may temporarily act in the president's place. In the
case of the death of the president, or in the case of his absence or
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inability to act without having designated a vice president or vice presidents
to act temporarily in his place, the Board of Directors, by resolution, may
designate a vice president or vice presidents, to perform the duties of the
president.
K. Secretary. The secretary shall keep or cause to be kept in books,
provided for that purpose, the minutes of the meetings of the shareholders,
executive committee, if any, and any other committees, and of the Board of
Directors; shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; shall be custodian of the
records and of the seal of the Corporation and see that the seal is affixed to
all documents, the execution of which on behalf of the Corporation under its
seal is duly authorized and in accordance with the provisions of these Bylaws;
and, in general, shall perform all duties incident to the office of secretary
and such other duties as may, from time to time, be assigned to him by the Board
of Directors or by the president. In the absence of the secretary or his
inability to act, the assistant secretaries, if any, shall act with the same
powers and shall be subject to the same restrictions as are applicable to the
secretary.
L. Treasurer. The treasurer shall have custody of corporate funds and
securities. He shall keep full and accurate accounts of receipts and
disbursements and shall deposit all corporate monies and other valuable effects
in the name and to the credit of the Corporation in the depository or
depositories of the Corporation, and shall render an account of his transactions
as treasurer and of the financial condition of the Corporation to the chief
executive officer, president and/or the Board of Directors upon request. Such
power given to the treasurer to deposit and disburse funds shall not, however,
preclude any other officer or employee of the Corporation from also depositing
and disbursing funds when authorized to do so by the Board of Directors. The
treasurer shall, if required by the Board of Directors, give the Corporation a
bond in such amount and with such surety or sureties as may be ordered by the
Board of Directors for the faithful performance of the duties of his office. The
treasurer shall have such other powers and perform such other duties as may be
from time to time prescribed by the Board of Directors or the chief executive
officer or such other person appointed from time to time by the chief executive
officer. In the absence of the treasurer or his inability to act, the assistant
treasurers, if any, shall act with the same authority and shall be subject to
the same restrictions as are applicable to the treasurer.
M. Delegation of Duties. Whenever an officer is absent, or whenever, for
any reason, the Board of Directors may deem it desirable, the Board of Directors
may delegate the powers and duties of an officer to any other officer or
officers or to any director or directors.
ARTICLE VII
Conflicts of Interests
A. Any of the directors or officers of the Corporation shall not, in the
absence of fraud, be disqualified from his office by contracting, leasing, or
otherwise dealing with the Corporation, either as vendor, lessor purchaser or
otherwise, nor shall any firm, association or corporation of which he shall be a
member or in which he may be pecuniarily interested in any manner be
disqualified. No director or officer, nor any firm, association or corporation
with
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which he is connected as aforesaid shall be liable to account to the Corporation
or its stockholders for any profit realized by him from or through any such
contract, lease or transaction, it being the express intent and purpose of this
Article to permit the Corporation to buy or lease from, sell to or otherwise
deal with partnerships, firms or corporations of which the directors and
officers or in which they or any of them may have a pecuniary interest.
B. No contract or other transaction between the Corporation and one or more
of its directors, or any other corporation, partnership, association or other
organization in which one or more of its directors or officers is a director or
officer or is financially interested shall be either void or voidable solely for
that reason or solely because such director or officer is present at or
participates in the meeting of the Board of Directors or a committee thereof
that authorizes, approves, or ratifies such contract or transaction or solely
because their votes are counted for such purpose if:
1. The material facts of such relationship, interest, contract or
transaction are disclosed to or known by the Board of Directors or
committee thereof, that in good faith authorizes, approves, or ratifies the
contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors are less
than a quorum;
2. The material facts of such relationship, interest, contract or
transaction are disclosed to or known by the shareholders entitled to vote
thereon, and the contract or transaction is specifically authorized,
approved or ratified in good faith by vote of the shareholders; or
3. The contract or transaction is fair as to the Corporation.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
ARTICLE VIII
Indemnification of Officers, Directors and Others
A. Definitions. Unless the context of this Article VIII indicates
otherwise, initially capitalized terms used herein shall have the meanings given
in Section 7-109-101 of the Colorado Business Corporation Act.
B. Standards for Indemnification.
1. General. Except as provided in Subsection B(4) below, the
Corporation shall indemnify against Liability, to the fullest extent
authorized by the Colorado Business Corporation Act, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), incurred in any
Proceeding by an individual made a Party to the Proceeding because he is or
was a Director or officer of the Corporation or any subsidiary of the
Corporation (an "Indemnitee") if. (a) he conducted himself in good faith;
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(b) he reasonably believed: (i) in the case of conduct in his Official
capacity with the Corporation, that his conduct was in the Corporation's
best interests; or (ii) that in all other cases, that his conduct was at
least not opposed to the Corporation's best interests; and (c) in the case
of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful.
2. Employee Benefit Plans. An Indemnitee's conduct with respect to an
employee benefit plan for a purpose he reasonably believed to be in the
interests of the participants in or beneficiaries of the plan is conduct
that satisfies the requirements of clause (b)(ii) of Subsection B(I) above.
An Indemnitee's conduct with respect to an employee benefit plan for a
purpose that he did not reasonably believe to be in the interests of the
participants in or beneficiaries of the plan shall be deemed not to satisfy
the requirements of clause (i) of Subsection B(l) above.
3. Termination of a Proceeding. The termination of any proceeding by
judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, is not of itself determinative that the
individual did not meet the standard of conduct set forth in Subsection
B(I) above.
4. Cases in Which Indemnification is Prohibited. The Corporation may
not indemnify an Indemnitee under this Section B either (a) in connection
with a Proceeding by or in the right of the Corporation in which the
Indemnitee was adjudged liable to the Corporation; or (b) in connection
with any Proceeding charging improper personal benefit to the Indemnitee,
whether or not involving action in his Official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received
by him.
5. Reasonable Expenses Only. Indemnification permitted under this
Section B in connection with a Proceeding by or in the right of the
Corporation is limited to reasonable expenses incurred in connection with
the Proceeding.
6. Application of Indemnification Obligations. The indemnity and
prepayment obligations of the Corporation and the standards for
indemnification set forth in this Article VIII shall apply in all cases,
even if the conduct, act or omission in question occurred prior to the date
that such indemnity and prepayment obligations were adopted by the
Corporation by amendment to these Bylaws.
7. Mandatory Indemnification. Unless limited by these Bylaws, the
Corporation shall be required to indemnify an Indemnitee who was wholly
successful, on the merits or otherwise, in defense of any Proceeding to
which he was a Party, against reasonable expenses incurred by him in
connection with the Proceeding.
8. Court Ordered Indemnification. Unless limited by these Bylaws, an
Indemnitee who is or was a Party to a Proceeding may apply for
indemnification to the court conducting the Proceeding or to another court
of competent jurisdiction. On receipt of an application, the court, after
giving any notice the court considers necessary, may order indemnification
in the following manner:
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a. Mandatory Indemnification. If it determines the Indemnitee is
entitled to mandatory indemnification under this Section, the court
shall order indemnification, in which case the court shall also order
the Corporation to pay the Indemnitee's reasonable expenses incurred
to obtain court-ordered indemnification.
b. Indemnification Regardless of Meeting Standard of Conduct. If
it determines that the Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or
not he met the standard of conduct set forth in Subsection B(I) of
this Article VIII or was adjudged liable in the circumstances
described in Subsection B(4) of this Article, the court may order such
indemnification as the court deems proper; except that the
indemnification with respect to any Proceeding in which liability
shall have been adjudged in the circumstances described in said
Subsection B(4) is limited to reasonable expenses incurred.
C. Indemnification Procedure.
1. Authorization of Indemnification Required. The Corporation may not
indemnify an Indemnitee under Section B of this Article VIII unless
authorized in the specific case after a determination has been made that
indemnification of the Indemnitee is permissible in the circumstances
because he has met the standard of conduct set forth in Subsection B(l).
2. Determination by the Board of Directors. The determination required
to be made by Subsection C(l) shall be made: (a) by the Corporation's Board
of Directors by a majority vote of a quorum, which quorum shall consist of
directors not parties to the Proceeding; or (b) if a quorum cannot be
obtained, by a majority vote of a committee of the Board designated by the
Board, which committee shall consist of two or more directors not parties
to the proceeding; except that directors who are parties to the proceeding
may participate in the designation of directors for the committee.
3. Determination by Body Other Than the Board of Directors. If the
quorum cannot be obtained or the committee cannot be established under
Subsection C(2), or even if a quorum is obtained or a committee designated
if such quorum or committee so directs, the determination required to be
made by Subsection C(l) shall be made: (a) by independent legal counsel
selected by a vote of the Corporation's Board of Directors or the committee
in the manner specified in clause (a) or (b) of Subsection C(2) or, if a
quorum of the full Board cannot be obtained and a committee cannot be
established, by independent legal counsel selected by a majority vote of
the full Board; or (b) by the shareholders.
4. Standard for Authorizing Indemnification. Authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is
permissible; except that, if the determination that indemnification is
permissible is made by independent legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made by the body that selected said counsel.
D. Pre-Payment or Reimbursement of Expenses.
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1. General. The Corporation shall pay for or reimburse the reasonable
expenses incurred by an Indemnitee who is a Party to a Proceeding because
he is or was a Director or officer of the Corporation or any subsidiary of
the Corporation, in advance of the final disposition of the Proceeding if:
(a) the Indemnitee furnishes the Corporation a written affirmation of his
good-faith belief that he has met the standard of conduct described in
clause (a) of Subsection B(l); (b) the Indemnitee furnishes the Corporation
a written undertaking, executed personally or on his behalf, to repay the
advance if it is determined that he did not meet such standard of conduct;
and (c) a determination is made that the facts then known to those making
the determination would not preclude indemnification under this Section D.
2. Undertaking. The undertaking required by clause (b) of Subsection
D(l) shall be an unlimited general obligation of the Indemnitee, but need
not be secured and may be accepted without reference to financial ability
to make repayment.
3. Authorization of Pre-Payments. Determinations and authorizations of
payments under this Section D shall be made in the manner specified in
Section C of this Article VIII.
E. Expenses Incurred as a Witness. The Corporation shall pay or reimburse
Expenses incurred by an Indemnitee in connection with his appearance, or
preparation for his appearance, as a witness in a Proceeding or at a deposition
related to a Proceeding, at a time when he has not been made a named defendant
or respondent in the Proceeding. If the Indemnitee is not an officer or Director
of the Company at the time his appearance is required at a Proceeding or
deposition related to a Proceeding, the Company shall pay the Indemnitee $500.00
for each day (or part thereof) that the Indemnitee is required to attend such
Proceeding or deposition.
F. Employees and Agents. Unless limited by these Bylaws:
1. Indemnification and Advancement of Expenses. The Corporation may
indemnify and advance expenses, pursuant to this Article VIII to an
employee or agent of the Corporation who is not an Indemnitee, in defense
of any Proceeding to which he was a Party by reason of his employment by or
relationship with the Corporation, to the same extent as an Indemnitee; and
2. Greater Rights of Indemnification Permitted. The Corporation may
indemnify and advance expenses to an employee or agent of the Corporation
who is not an Indemnitee to a greater extent if consistent with law, these
Bylaws, the Articles of Incorporation, resolution of the shareholders or
directors, or in a contract.
G. Insurance. The Corporation may purchase and maintain insurance on behalf
of a person who is or was a Director, officer, employee, fiduciary or agent of
the Corporation, or any subsidiary of the Corporation, or who, while a Director,
officer, employee, fiduciary or agent of the Corporation or any subsidiary of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, fiduciary or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
other enterprise or
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employee benefit plan against any liability asserted against or incurred by him
in any such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VIII. Any such insurance may be procured from any
insurance company designated by the Board of Directors of the Corporation,
whether such insurance company is formed under the laws of Colorado or any other
jurisdiction of the United States or elsewhere, including any insurance company
in which the Corporation has equity or any other interest, through stock
ownership or otherwise.
H. Report to Shareholders. Any indemnification of or advance of expenses to
a Director in accordance with this Article VIII, if arising out of a proceeding
by or on behalf of the Corporation, shall be reported in writing to the
shareholders with or before the notice of the next shareholders' meeting.
I. Governing Law. This Article VIII shall be governed by and construed in
accordance with Section 7-109-101 of the Colorado Business Corporation Act, as
amended from time to time.
J. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article VIII shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Articles of Incorporation, Agreement, vote of
stockholders or disinterested directors or otherwise. To the extent that the
rights to indemnification granted by these Bylaws are inconsistent with those
granted by the Corporation's Articles of Incorporation, the provisions of these
Articles of Incorporation shall govern.
ARTICLE IX
Share Certificates and the Transfer of Shares
A. Certificates Representing Shares. The shares may but need not be
represented by certificates. Unless the Colorado Business Corporation Act or
another law expressly provides otherwise, the fact that the shares are not
represented by certificates shall have no effect on the rights and obligations
of shareholders of the Corporation. If the shares are represented by
certificates, such certificates shall be in a form approved by the Board of
Directors, consecutively numbered, and signed in the name of the Corporation by
any two of the chairman of the Board, the chief executive officer, the
president, or a vice president, and shall be sealed with the seal of the
Corporation or a facsimile thereof. Any or all of the signatures upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or an
employee of the Corporation. In case any officer who has signed such certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer at
the date of its issue.
B. Shares Without Certificates. Unless the Articles of Incorporation
provide otherwise, the Board of Directors of the Corporation may authorize the
issuance of any of its classes of series, if any, of shares without
certificates. Such authorization shall not affect shares
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already represented by certificates until they are surrendered to the
Corporation. Within a reasonable time after the issuance or transfer of shares
without certificates, the Corporation shall send to the shareholder a written
statement of the information required by the Colorado Business Corporation Act.
C. Issuance of Shares. Except as provided in the Articles of Incorporation,
the Board of Directors may authorize the issuance of shares for consideration
consisting of any tangible, intangible property or benefit to the Corporation,
including cash, promissory notes, services performed and other securities of the
Corporation. The Board of Directors shall determine that the consideration
received or to be received for the shares to be issued is adequate. Such
determination, in the absence of fraud, is conclusive insofar as the adequacy of
such consideration relates to whether the shares are validly issued, fully paid
and nonassessable. The promissory note of a subscriber or an affiliate of a
subscriber for shares shall not constitute consideration for the shares unless
the note is negotiable and is secured by collateral other than the shares,
having a fair market value at least equal to the principal amount of the note.
For the purposes of this Section C, "promissory note" means a negotiable
instrument on which there is an obligation to pay independent of collateral and
does not include a nonrecourse note. Unless otherwise expressly provided in the
Articles of Incorporation, shares having a par value may be issued for less than
the par value.
D. Lost Certificates. The Board of Directors may direct a new certificate
to be issued in place of a certificate alleged to have been destroyed or lost if
the owner makes an affidavit or affirmation of that fact and produces such
evidence of loss or destruction as the Board of Directors may require. The Board
of Directors, in its discretion, may as a condition precedent to the issuance of
a new certificate require the owner to give the Corporation a bond in such form
and amount and with such surety as it may determine as indemnity against any
claim that may be made against the Corporation relating to the certificate
allegedly destroyed or lost.
E. Transfer of Shares. Shares of the Corporation shall only be transferred
on the stock transfer books of the Corporation by the holder of record thereof
upon the surrender to the Corporation of the share certificates duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer and such documentary stamps as may be required by law. In that event.,
the surrendered certificates shall be canceled, new certificates issued to the
persons entitled to them, and the transaction recorded on the books of the
Corporation.
F. Registered Shareholders. The Corporation shall be entitled to treat the
registered holder of any shares of the Corporation as the owner thereof for all
purposes, and the Corporation shall not be bound to recognize any equitable or
other claim to, or interest in, such shares or rights deriving from such shares
on the part of any person other than the registered holder, including without
limitation any purchaser, assignee or transferee of such shares or rights
deriving from such shares, unless and until such other person becomes the
registered holder of such shares, whether or not the Corporation shall have
either actual or constructive notice of the claimed interest of such other
person.
The Board of Directors may adopt by resolution a procedure whereby a
shareholder may certify in writing to the Corporation that all or a portion of
the shares registered in the name of
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such shareholder are held for the account of a specified person or persons. Such
resolution shall set forth: (i) the classification of shareholder who may
certify; (ii) the purpose or purposes for which the certification may be made;
(iii) the form of certification and information to be contained therein; (iv) if
the certification is with respect to a record date or closing of the stock
transfer books within which the certification must be received by the
Corporation; and (v) such other provision with respect to the procedure as are
deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the holders of record of the number of shares specified in
place of the shareholder making the certification.
G. Stock Ledger. An appropriate stock journal and ledger shall be kept by
the secretary or such registrars or transfer agents as the directors by
resolution may appoint in which all transactions in the shares of stock of the
Corporation shall be recorded.
H. Notice of Restriction on Transfer. Notice of any restriction on the
transfer of the stock of the Corporation shall be placed on each certificate of
stock issued.
ARTICLE X
Insurance
By action of the Board of Directors, notwithstanding any interest of the
directors in the action, the Corporation may purchase and maintain insurance, in
such scope and amounts as the Board of Directors deems appropriate, on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the Corporation, or who, while a director, officer, employee, fiduciary or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, fiduciary or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
profit or nonprofit unincorporated association, limited liability company or
other enterprise or employee benefit plan, against any liability asserted
against, or incurred by, him in that capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of the Colorado Business Corporation
Act. Any such insurance may be procured from any insurance company designated by
the Board of Directors of the Corporation, whether such insurance company is
formed under the laws of the State of Colorado or any company in which the
Corporation has an equity interest or any other interest, through stock
ownership or otherwise.
ARTICLE XI
Seal and Fiscal Year
A. Seal. The corporate seal of the Corporation, if any, may be in such form
as adopted by the Board of Directors, and any officer of the corporation may,
when and as required, affix or impress the seal, or a facsimile thereof, to or
on any instrument or document of the corporation.
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B. Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors. Said fiscal year may be changed from time to time by the
Board of Directors in its discretion.
ARTICLE XII
Dividends
Dividends shall be declared and paid out of the net profits and surplus of
the Corporation as often and at such times as the Board of Directors may
determine, taking into account reserve, capital and other needs of the
Corporation. No unclaimed dividend shall bear interest against the Corporation.
Dividends of capital stock may also be declared when, in the judgment of the
Board of Directors, it is considered proper and in the interests of the
Corporation.
ARTICLE XIII
Amendments
Subject to repeal or change by action of the shareholders, the Board of
Directors may amend, supplement or repeal these Bylaws or adopt new Bylaws, and
all such changes shall affect and be binding upon the holders of all shares
heretofore as well as hereafter authorized, subscribed for or offered.
ARTICLE XIV
Miscellaneous
A. Gender. Whenever required by the context, the singular shall include the
plural, the plural the singular, and one gender shall include all genders.
B. Invalid Provision. The invalidity or unenforceability of any particular
provision of these Bylaws shall not affect the other provisions herein, and
these Bylaws shall be construed in all respects as if such invalid or
unenforceable provision was omitted.
C. Governing Law. These Bylaws shall be governed by and construed in
accordance with the laws of the State of Colorado.
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