<PAGE>
THIS IS AN ELECTRONIC CONFIRMING COPY.
THIS FORM 8-A HAS BEEN PAPER FILED ON JULY 23, 1996
FORM 8-A
-----------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BEVERAGE INTERNATIONAL GROUP, LTD.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 84-1206575
- ---------------------------------------- -------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
11210 Huron, Suite 200,
Northglenn, Colorado 80234
- ---------------------------------------- -------------------------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. / /
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. / /
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value per share
(Title of class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF SMALL BUSINESS ISSUER'S SECURITIES TO BE REGISTERED.
This registration statement relates to the registration with the Securities
and Exchange Commission of shares of common stock, $.001 par value per share, of
Beverage International Group, Ltd., a Colorado corporation (the "Company"). The
description of the common stock to be registered hereunder is set forth under
the caption "Description of Securities" at page 43 of the Company's registration
statement on Form SB-2 (Registration No. 33-98974-D), filed with the Securities
and Exchange Commission on July 16, 1996 (the "Registration Statement"), and is
incorporated herein by reference.
ITEM 2. EXHIBITS.
FORM 8-A EXHIBIT DESCRIPTION
4.1 Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Registration Statement)
4.2 Form of Articles of Amendment to the Articles of Incorporation of the
Company
4.3 Bylaws of the Company (incorporated herein by reference to Exhibit 3.2
to the Registration Statement)
4.4 Amendment to the Bylaws of the Company
4.5 Specimen of common stock certificate
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
BEVERAGE INTERNATIONAL GROUP, LTD.
Date July 22, 1996
---------------------------------------------------------------------------
By /s/ Anthony G. Bottagaro
---------------------------------------------------------------------------
Anthony G. Bottagaro, Chief Executive Officer
<PAGE>
EXHIBIT 4.1
<PAGE>
Please include a typed MAIL TO: For Office Use Only
self-addressed envelope. Secretary of State
Corporation Section
MUST BE TYPED 1560 Broadway, Suite 200
FILING FEE: $25.00* Denver, CO 80202
MUST SUBMIT TWO COPIES (303) 894-2251
Fax (303) 894-2242
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Pure Colorado Incorporated
------------------------------------
(formerly known as America's Purewater Company, Inc.)
SECOND: The following amendment to the Articles of Incorporation was adopted on
November 24 1994 , as prescribed by the Colorado Business Corporation Act, in
- ------------- ---
the manner marked with an X below:
No shares have been issued or Directors Elected -- Action by
- ------- Incorporators
No shares have been issued but Directors Elected -- Action by
- ------- Directors
X Such amendment was adopted by the board of directors where shares have
- ------- been issued.
X Such amendment was adopted by a vote of the shareholders. The number
- ------- of shares voted for the amendment was sufficient for approval.
If these amendments are to have a delayed effective date, please list that date:
N/A
- --------------------------------------------------------
(not to exceed ninety (90) days from the date of filing)
Amendment(s): Revised language in Article II, Capital.
-------------------------------------------------------------------
See attached Amendment to Articles of Incorporation
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THIRD: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the amendment
shall be effected, is as follows:
No change to Class A Voting Common, 4 million authorized.
Increase authorized issuance of Class B Non-Voting Common to 21 million.
No change to preferred stock, 10 million authorized.
FOURTH: The manner in which such amendment effects a change in the amount of
stated capital, and the amount of stated capital as changed by such amendment,
is as follows:
Increase in common stock from 10 million to 25 million.
PURE COLORADO INCORPORATED
----------------------------------------
By /S/ Anthony G. Bottagaro
-------------------------------------
Its President
-------------------------------------
Title
*Fees are subject to change and should be confirmed before filing.
<PAGE>
Please include a typed MAIL TO: For Office Use Only
self-addressed envelope. Secretary of State
Corporation Section
MUST BE TYPED 1560 Broadway, Suite 200
FILING FEE: $25.00* Denver, CO 80202
MUST SUBMIT TWO COPIES (303) 894-2251
Fax (303) 894-2242
CHANGE OF NAME
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Pure Colorado Incorporated
------------------------------------
(formerly known as America's Purewater Company, Inc.)
SECOND: The following amendment to the Articles of Incorporation was adopted on
March 31 1995 , as prescribed by the Colorado Business Corporation Act, in
- --------- ---
the manner marked with an X below:
No shares have been issued or Directors Elected -- Action by
- ------- Incorporators
No shares have been issued but Directors Elected -- Action by
- ------- Directors
X Such amendment was adopted by the board of directors where shares have
- ------- been issued.
X Such amendment was adopted by a vote of the shareholders. The number
- ------- of shares voted for the amendment was sufficient for approval.
If these amendments are to have a delayed effective date, please list that date:
N/A
- --------------------------------------------------------
(not to exceed ninety (90) days from the date of filing)
Amendment(s): Revise language in Article I
-------------------------------------------------------------------
- --------------------------------------------------------------------------------
The name of the corporation shall be Beverage International Group,
- --------------------------------------------------------------------------------
Ltd.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THIRD: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the amendment
shall be effected, is as follows: NONE
FOURTH: The manner in which such amendment effects a change in the amount of
stated capital, and the amount of stated capital as changed by such amendment,
is as follows: NONE
Beverage International Group, Ltd.
----------------------------------------
By /S/ Thomas A. Bottagaro
-------------------------------------
Its Vice President
-------------------------------------
Title
*Fees are subject to change and should be confirmed before filing.
<PAGE>
[SEAL]
STATE OF COLORADO
DEPARTMENT OF
STATE
CERTIFICATE
I, NATALIE MEYER, SECRETARY OF THE STATE OF COLORADO HEREBY CERTIFY THAT
THE PREREQUISITES FOR THE ISSUANCE OF THIS CERTIFICATE HAVE BEEN FULFILLED IN
COMPLIANCE WITH LAW AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY
LAW, HEREBY ISSUES A CERTIFICATE OF INCORPORATION TO AMERICA'S PUREWATER
COMPANY, INC.
DATED: JUNE 2, 1992
/S/ Natalie Meyer
-------------------------------------------------------
SECRETARY OF STATE
<PAGE>
ARTICLES OF INCORPORATION
OF
AMERICA's PUREWATER COMPANY, INC.
The undersigned, being a natural person of the age of eighteen (18) years
or more and desiring to form a corporation under the laws of the State of
Colorado, does hereby adopt these Articles of Incorporation.
ARTICLE I
The name of the corporation shall be America's PureWater Company, Inc.
ARTICLE II
CAPITAL
The authorized capital of this corporation shall consist of 10,000,000
shares of common stock, with a par value of $.001 per share consisting of
4,000,000 Class A Voting Common Stock and 6,000,000 Class B Non-Voting Common
Stock, and 10,000,000 shares of preferred stock, with a par value of $1.00 per
share. From time to time such shares may be issued by the corporation for such
consideration expressed in dollars, in money paid, property received, or labor
done, as may be fixed by the Board of Directors. All of such stock, when
issued, shall be fully paid and nonassessable for any purpose.
Each shareholder of record holding Class A Common Stock shall have one vote
for each share of stock standing in his name on the books of the Corporation and
entitled to vote. In the election of directors, cumulative voting shall not be
allowed.
The preferred stock may be divided into such number of series as the board
of directors may determine. The board of directors is authorized to determine
and alter the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of preferred stock and to fix the number
of shares of any series of preferred stock and the designation of any such
series of preferred stock. The board of directors, within the limits and
restrictions stated in any resolution or resolutions of the board of directors
originally fixing the numbers of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of that series.
ARTICLE III
PREEMPTIVE RIGHTS
A shareholder of the corporation shall not be entitled to a preemptive
right to purchase, subscribe for, or otherwise acquire any unissued or treasury
shares of stock of the corporation, or any options or warrants to purchase,
subscribe for or otherwise acquire any such unissued or treasury shares, or any
shares, bonds, notes, debentures, or other securities convertible into or
carrying options or warrants or privileges to purchase, subscribe for or
otherwise acquire any such unissued or treasury shares.
ARTICLE IV
CUMULATIVE VOTING
The shareholders shall not be entitled to cumulative voting for any
purpose.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the corporation shall be
1655 Walnut Street, Boulder, Colorado 80302 and the initial registered agent at
such address shall be Donald J. Humphrey.
ARTICLE VI
<PAGE>
INITIAL BOARD OF DIRECTORS
The number of directors of the corporation shall be five (5), which number
may be increased or decreased pursuant to the bylaws of the corporation, but
shall never be less than three (3), except:
(a) If there is no stock outstanding, the number of directors may be
less than three (3), but not less than (1), and
(b) If there is stock outstanding, and so long as
there are less than three (3) shareholders, the number of directors may be less
than three (3), but not less than the number of shareholders.
The number of directors constituting the initial Board of Directors shall
be five (5). The name and address of the persons who shall serve as directors
until the first annual meeting of shareholders or until their successors are
elected and qualified are as follows:
NAME ADDRESS
---- -------
Anthony G. Bottagaro 4965 Country Club Way
Boulder, Colorado 80301
Alan C. Stormo 3733 Wonderland Hill
Boulder, Colorado 80304
Donald J. Humphrey 7357 Glacier View
Longmont, Colorado 80503
Charles D. Greenidge 26711 Chipmunk Drive
Evergreen, Colorado 80304
Francis A. Schmall 7581 Meade Way
Westminster, Colorado 80030
ARTICLE VII
INDEMNIFICATION
(A) The corporation may indemnify 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
(other than an action by or in the right of the corporation), by reason of the
fact that he 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, against
expenses (including attorneys' fees), judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in the best interests of the corporation (in the case
of conduct in his official capacity with the corporation) or in a manner he
reasonably believed to be at least not opposed to the corporation's best
interests (in all cases other than in the case of conduct in his official
capacity with the corporation), and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
or conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the person did not meet the standard of conduct
set forth in this paragraph (A) of Article VII.
(B) The corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
met the standard of conduct set forth in paragraph (A) of this Article VII.
(C) Notwithstanding the foregoing provisions of paragraphs (A) and (B) of
this Article VII, the corporation may not indemnify a director or officer in
connection with a proceeding by or in the right of the corporation in which the
director or officer was adjudged liable to the corporation or in connection with
any proceeding charging improper personal benefit to the director or officer,
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.
<PAGE>
(D) To the extent that a director or officer of a corporation has been
successful on the merits in defense of any action, suit, or proceeding referred
to in (A) or (B) of this Article VII or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(E) Nothing in this Article VII shall limit or deny a director or officer
of the corporation from applying to a court of competent jurisdiction for
mandatory indemnification as provided by the Colorado Corporation Code, as
amended, as from time to time in effect.
(F) Any indemnification under paragraphs (A) or (B) of this Article VII
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (A) or (B) above. Such
determination shall be made by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit, or
proceeding, or, if such a quorum is not obtainable or, even if obtainable, if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
(G) Expenses (including attorneys' fees) incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit, or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount
unless it is ultimately determined that he is entitled to be indemnified by the
corporation as authorized in this Article VII and such director or officer
furnishes the corporation a written affirmation of his good faith belief that he
has met the standard of conduct required herein.
(H) The indemnification provided by this Article VII shall not be deemed
exclusive of any other rights to which those indemnified herein or other persons
may be entitled under the Colorado Corporation Code, any bylaw, agreement, vote
of shareholders or disinterested directors, or otherwise, and any procedure
provided for by any of the foregoing, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of heirs, executors, and administrators of such a person.
(I) The corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation or 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 any other
person against any liability asserted against him and 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
provisions of this Article VII.
(J) Notwithstanding the above provisions, a director shall have no
personal liability to the corporation or to its shareholders for monetary
damages for breach of fiduciary duty as a director; except that this provision
shall not eliminate the liability of a director to the corporation or to its
shareholders for monetary damages for: Any breach of the director's duty of
loyalty to the corporation or to its shareholders; acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
acts specified in section 7-5-114 of the Colorado Corporation Code; or any
transaction from which the director derived an improper personal benefit.
ARTICLE VIII
TRANSACTIONS WITH INTERESTED DIRECTORS
No contract or transaction between the corporation and one (1) or more of
its directors or any other corporation, partnership, association or other
organization in which one (1) or more of its directors are directors or officers
or are financially interested shall be void or voidable solely because of such
relationship or interest, or solely because such director or officer is present
at or participates in the meeting of the Board of Directors or a committee
thereof which authorizes, approves, or ratifies the contract or transaction, or
solely because his or their votes are counted for such purpose if:
(A) The material facts as to such relationship or interest and the
contract or transaction are disclosed or known to the Board of Directors or
committee, which in good faith authorizes, approves, or ratifies the contract or
transaction by the affirmative vote or consent of a majority of disinterested
directors, even though the disinterested directors are less than a quorum; or
(B) The material facts as to such relationship or interest and the
contract or transaction are disclosed or known to the shareholders entitled to
vote thereon and the contract or transaction is specifically authorized,
approved, or ratified in good faith by vote or consent of the shareholders; or
<PAGE>
(C) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved, or ratified by the Board of Directors or
shareholders.
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 IX
MAJORITY VOTE OF SHAREHOLDERS
At all meetings of shareholders, a majority of shares entitled to vote at
such meeting represented in person or by proxy, shall constitute a quorum, and
at any meeting at which a quorum is present the affirmative vote of a majority
of the shares represented at such meeting and entitled to vote at the meeting
shall be the act of the shareholders.
ARTICLE X
INCORPORATOR
The name and address of the incorporator is as follows:
Anthony G. Bottagaro
4965 Country Club Way
Boulder, Colorado 80301
IN WITNESS WHEREOF, the incorporator has signed and verified these Articles
of Incorporation on June 2, 1992.
/s/ Anthony G. Bottagaro
----------------------------------------
Anthony G. Bottagaro, Incorporator
<PAGE>
[SEAL]
STATE OF COLORADO
DEPARTMENT OF
STATE
CERTIFICATE
I, NATALIE MEYER, SECRETARY OF THE STATE OF COLORADO HEREBY CERTIFY THAT
THE PREREQUISITES FOR THE ISSUANCE OF THIS CERTIFICATE HAVE BEEN FULFILLED IN
COMPLIANCE WITH LAW AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY
LAW, HEREBY ISSUES A CERTIFICATE OF INCORPORATION TO PURE COLORADO INCORPORATED,
FORMERLY KNOWN AS AMERICA'S PUREWATER COMPANY, INC.
DATED: JUNE 10, 1994
/S/ Natalie Meyer
-------------------------------------------------------
SECRETARY OF STATE
<PAGE>
Submit in Duplicate MAIL TO: For Office Use Only
Filing Fee: $25.00* Colorado Secretary of State
Must Be Typewritten Corporation Office
1560 Broadway, Suite 200
Denver, CO 80202
(303) 894-2251
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Corporation Code, the
undersigned corporation adopts the following Articles of Amendments to its
Articles of Incorporation:
FIRST: The name of the corporation is (note 1) America's Purewater
Company, Inc.
SECOND: The following amendment to the Articles of Incorporation was
adopted on APRIL 29 1994, as prescribed by the Colorado Corporation
Code, in the manner marked with an X below:
Such amendment was adopted by the board of directors where
---------- no shares have been issued.
X Such amendment was adopted by a vote of the shareholders.
---------- The number of shares voted for the amendment was sufficient
for approval.
The corporate name is changed to: Pure Colorado Incorporated
THIRD: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in the
amendment shall be effected, is as follows: none
------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
*Fees are subject to change and should be confirmed before filing.
<PAGE>
FOURTH: The manner in which such amendment effects a change in the amount
of stated capital, and the amount of stated capital as changed by such
amendment, are as follows: none
-----------------------------------------------------
- --------------------------------------------------------------------------------
America's Purewater Company, Inc.
-------------------------------------(Note 1)
By /s/ Anthony G. Bottagaro
------------------------------------------
Its President
---------------------
and /s/ Jeffrey S. Burger (Note 2)
--------------------------------
Its Secretary
---------------------
-------------------------------- (Note 3)
Its Director
---------------------
NOTES: 1. Exact corporate name of corporation adopting the Articles of
Amendments. (If this is a change of name amendment, the name
before this amendment is filed.)
2. Signatures and titles of officers signing for the corporation.
3. Where no shares have been issued, signature of a director.
<PAGE>
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION FOR
BEVERAGE INTERNATIONAL GROUP, LTD.
Pursuant to the provisions of the Colorado Business Corporation Act,
Beverage International Group, Ltd. (the "Corporation") adopts the following
Articles of Amendment (the "Articles of Amendment") to its Articles of
Incorporation (the "Articles of Incorporation"):
1. The Articles of Incorporation of the Corporation are hereby amended by
deleting therefrom in its entirety the first paragraph of Article II and by
substituting in lieu thereof, the following paragraph:
The total number of shares of capital stock which the Corporation
is authorized to issue is 60,000,000 shares of Stock, of which
25,000,000 shares are Common Stock, par value $.001 per share,
4,000,000 shares are Class A Voting Common Stock, 21,000,000
shares are Class B Non-Voting Common Stock and 10,000,000 shares
are Preferred Stock, par value $1.00 per share, of which
1,000,000 shares are designated Preferred Series A Stock, par
value $1.00 per share.
2. The Articles of Incorporation of the Corporation are hereby amended by
deleting therefrom in its entirety Article VII and by substituting in lieu
thereof, the following language:
ARTICLE VII
INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) INDEMNIFICATION. The corporation shall indemnify, to the
maximum extent permitted by law, any person who is or was a
director, officer, agent, fiduciary or employee of the
corporation against any claim, liability or expense arising
against or incurred by such person made party to a proceeding
because he or she is or was a director, officer, agent, fiduciary
or employee of the corporation or because he or she is or was
serving another entity as a director, officer, partner, trustee,
employee, fiduciary or agent at the corporation's request The
corporation shall further have the authority to the maximum
extent permitted by law to purchase and maintain insurance
providing such indemnification.
(b) LIMITATION ON DIRECTOR'S LIABILITY. No director of this
corporation shall have any personal liability for monetary
damages to the corporation or its shareholders for breach of his
fiduciary duty as a director, except that this provision shall
not eliminate or limit the personal liability of a director to
the corporation or its shareholders for monetary damages for: (i)
any breach of the director's duty of loyalty to the corporation
or its shareholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law; (iii) voting for or assenting to a distribution in violation
of Colorado Revised Statutes Section 7-106-401 or the Articles of
Incorporation if it is established that the director did not
perform his or her duties in compliance with Colorado Revised
Statutes Section 7-108-401, provided that the personal liability
of a director in this circumstance shall be limited to the amount
of the distribution which exceeds what could have been
distributed without violation of Colorado Revised Statues Section
7-106-401 or the Articles of Incorporation; or (iv) any
transaction from which the director directly or indirectly
derives an improper personal benefit. Nothing contained herein
will be construed to deprive any director of his or her right to
all defenses ordinarily available to a director nor will anything
herein be construed to deprive any director of any right he or
she may have for contribution from any other director or other
person.
3. By written informal action, unanimously taken by the Board of
Directors of the Corporation effective as of the 20th day of October, 1995,
pursuant to and in accordance with Sections 7-108-202 and 7-110-103 of the
Colorado Business Corporation Act, the Board of Directors of the Corporation
duly advised the foregoing amendments and by written informal action unanimously
taken by the Class A Voting Common Shareholders of the Corporation effective as
of the 20th day of October, 1995, in accordance with Sections 7-107-104 and 7-
110-103 of
18
<PAGE>
the Colorado Business Corporation Act, the shareholders of the Corporation duly
approved said amendments.
IN WITNESS WHEREOF, the Corporation has caused these presents to be signed
in its name and on its behalf by its President and its corporate seal to be
hereunder affixed and attested by its Secretary on this 24th day of October,
1995, and its President acknowledges that these Articles of Amendment are the
act and deed of the Corporation and, under penalties of perjury, that the
matters and facts set forth herein with respect to the authorization and
approval are true in all material respects to the best of his knowledge,
information and belief.
BEVERAGE INTERNATIONAL GROUP, LTD.
By: /s/ Anthony G. Bottagaro
-----------------------------------------------
Anthony G. Bottagaro, President
ATTEST:
By: /s/ Jeffrey S. Burger
----------------------------
Jeffrey S. Burger, Secretary
19
<PAGE>
EXHIBIT 4.2
<PAGE>
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION FOR
BEVERAGE INTERNATIONAL GROUP, LTD.
Pursuant to the provisions of the Colorado Business Corporation Act,
Beverage International Group, Ltd. (the "Corporation") adopts the following
Articles of Amendment (the "Articles of Amendment") to its Articles of
Incorporation (the "Articles of Incorporation"):
1. The Articles of Incorporation of the Corporation are hereby
amended by deleting therefrom in its entirety the first paragraph of Article
II and by substituting in lieu thereof, the following paragraph:
"The total number of shares of capital stock which the Corporation is
authorized to issue is 60,000,000 shares of Stock, of which 50,000,000
shares are Common Stock, par value $.001 per share, and 10,000,000 shares
are Preferred Stock, par value $1.00 per share, of which 1,000,000 shares
are designated Preferred Series A Stock, par value $1.00 per share."
2. The manner and basis of implementing the recapitalization
effected by these Articles of Amendment shall be as follows:
a. Upon acceptance and filing of these Articles of Amendment by
the Colorado Secretary of State, each of the issued and outstanding shares
of Class A Voting Common Stock and each of the issued and outstanding
shares of Class B Non-Voting Common Stock shall forthwith be surrendered
in exchange for one (1) share of Common Stock of the Corporation.
b. Upon acceptance and filing of these Articles of Amendment by
the Colorado Secretary of State, each of the remaining authorized, but
unissued shares of Class A Voting Common Stock and each of the remaining
authorized, but unissued shares of Class B Non-Voting Common Stock shall be
reclassified as one (1) share of Common Stock of the Corporation.
c. These Articles of Amendment will be filed immediately prior to
the Corporation's registration statement filed with the Securities and
Exchange Commission (the "SEC") in conjunction with the Corporation's
initial public offering of 1,750,000 shares of the Corporation's Common
Stock on Form SB-2 pursuant to SEC File No. 33-988974-D (the "Registration
Statement") being declared effective by the SEC (the "Declaration of
Effectiveness"). If such Declaration of Effectiveness has not occurred
prior to December 31, 1996 these Articles of Amendment will not be filed
and the Articles of Amendment will be null and void.
3. The number of shares converted through the recapitalization
described above, as approved by unanimous consent of the Board of Directors
and shareholders of Class A Voting Common Stock of the Corporation effective
June 18, 1996, and through approval of a majority of the shareholders of the
Corporation's Class B Non-Voting Common Stock at a Special Meeting held on
July 2, 1996, is 4,000,000 shares of Class A Voting Common Stock and
21,000,000 shares of Class B Non-Voting Common Stock.
4. The aggregate number of authorized shares of the Corporation,
itemized by class and series, after giving effect to such conversion, is as
follows:
Class Number of Shares Authorized
----- ---------------------------
Common 50,000,000
Preferred 10,000,000, of which 1,000,000 are
designated as Series A Preferred
5. By (i) written action, unanimously taken by the Board of
Directors of the Corporation effective as of the 18th day of June, 1996,
pursuant to and in accordance with Sections 7-108-202 and 7-110-103 of the
Colorado Business Corporation Act, the Board of Directors of the Corporation
duly approved the foregoing amendments; (ii) written informal action
unanimously taken by the Class A Voting Common Shareholders of the
Corporation effective as of the
<PAGE>
18th day of June, 1996, in accordance with Sections 7-107-104, 7-110-103 and
7-110-104 of the Colorado Business Corporation Act; and (iii) through
approval of a majority of the shareholders of the Corporation's Class B
Non-Voting Common Stock at a Special Meeting held on July 2, 1996, in
accordance with Sections 7-107-102, 7-110-103 and 7-110-104 of the Colorado
Business Corporation Act, the shareholders of the Corporation duly approved
said amendments.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be signed in its name and on its behalf by its President and its
corporate seal to be hereunder affixed and attested by its Secretary on this
day of , 1996, and its President acknowledges that these Articles of
Amendment are the act and deed of the Corporation and, under penalties of
perjury, that the matters and facts set forth herein with respect to the
authorization and approval are true in all material respects to the best of
his knowledge, information and belief.
BEVERAGE INTERNATIONAL GROUP, LTD.
By:
------------------------------------
Anthony G. Bottagaro, President
ATTEST:
By:
--------------------------
Dawn M. Lutz, Secretary
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EXHIBIT 4.3
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BYLAWS
OF
AMERICA'S PUREWATER COMPANY, INC.
ARTICLE I.
OFFICES
Section 1. BUSINESS OFFICES. The principal office of the corporation
shall be located in Boulder, Colorado. The corporation may have such other
offices, either within or outside Colorado, as the Board of Directors may
designate or as the business of the corporation may require from time to time.
Section 2. REGISTERED OFFICE. The registered office of the corporation
required by the Colorado Corporation Code to be maintained in Colorado may be,
but need not be, identical with the principal office if in Colorado, and the
address of the registered office may be changed from time to time by the Board
of Directors.
ARTICLE II.
SHAREHOLDERS
Section 1. ANNUAL MEETING. An annual meeting of the shareholders shall
be held on the second Monday in the month of March in each year, or on such
other date as may be determined by the Board of Directors, beginning with the
year 1993, for the purpose of electing Directors and for the transaction of such
other business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day. If the election of Directors shall not be held on the
day designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a meeting of the shareholders as soon thereafter as conveniently may be
convened. Failure to hold an annual meeting as required by these Bylaws shall
not invalidate any action taken by the Board of Directors or officers of the
corporation.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the president or the Board of Directors, and shall be called by the president
at the request of holders of not less than one-tenth of all outstanding shares
of the corporation entitled to vote at the meeting.
Section 3. PLACE OF MEETING. Each meeting of the shareholders shall be
held at such place, either within or outside Colorado, as may be designated in
the notice of meeting, or, if no place is designated in the notice, at the
registered office of the corporation in Colorado.
Section 4. NOTICE OF MEETING. Except as otherwise prescribed by
statute, written notice of each meeting of the shareholders stating the place,
day and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be given not less than ten
nor more than fifty days before the date of the meeting, either personally or by
first class, certified or registered mail, by or at the direction of the
president, or the secretary, or the officer or person calling the meeting, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
addressed to each shareholder at his address as it appears in the records of the
corporation, with postage thereon prepaid, but if three successive notices
mailed to the last-known address of any shareholder of record are returned as
undeliverable, no further notices to such shareholder shall be necessary until
another address for such shareholder is made known to the corporation. If
requested by a person or persons, other than the corporation, lawfully calling a
meeting, the secretary shall give notice of such meeting at corporate expense.
Section 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of the 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, the Board of Directors may provide
that the stock transfer books shall be closed for any stated period not
exceeding fifty 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 the shareholders, such books shall be closed for at least ten days
immediately preceding such meeting. In lieu of closing the stock transfer books
the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders, such date in any
case to be not more than fifty days, and, in case of a meeting of the
shareholders, not less than ten days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken. If the
stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
the 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 the
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof except where the determination has been made
through the closing of the stock transfer books and the stated period of the
closing has expired.
Section 6. VOTING RECORD. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten days
before each meeting of the shareholders, a complete record of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each.
For a period of ten days before such meeting, this record shall be kept on file
at the principal office of the corporation, whether within or outside Colorado,
and shall be subject to inspection by any shareholder for any purpose germane to
the meeting at any time during usual business hours. Such record 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
record or transfer books or to vote at any meeting of the shareholders.
Section 7. PROXIES. At each meeting of the shareholders, a shareholder
may vote by proxy executed in writing by the shareholder or his duly authorized
attorney in fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
Section 8. QUORUM. Except as otherwise required by the laws of
Colorado or the Articles of Incorporation, a majority of the outstanding shares
of the corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at each meeting of the shareholders, and the affirmative
vote of a majority of the shareholders represented at a meeting at which a
quorum is present and entitled to vote on the subject matter shall be the act of
the shareholders. If less than a majority of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time for a period not to exceed sixty days at any one
adjournment without further notice other than an announcement at the meeting.
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.
Section 9. VOTING OF SHARES. Each outstanding share of record,
regardless of class, is entitled to one vote, and each fractional share is
entitled to a corresponding fractional vote, on each matter submitted to a vote
of the shareholders either at a meeting thereof or pursuant to Section 11 of
this Article, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Articles of Incorporation as
permitted by the Colorado Corporation Code. In the election of Directors each
record holder of stock entitled to vote at such election shall have the right to
vote the number of shares owned by him for as many persons as there are
Directors to be elected, and for whose election he has the right to vote.
Cumulative voting shall not be allowed.
Section 10. VOTING OF SHARES BY CERTAIN HOLDERS. Neither treasury
shares nor shares held by another corporation if a majority of the shares
entitled to vote for the election of Directors of such other corporation is held
by this corporation, shall be voted at any meeting or counted in determining the
total number of outstanding shares at any given time.
Shares standing in the name of another corporation 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.
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.
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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 is
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 11. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at a meeting of the shareholders or any committee thereof may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with respect
to the subject matter thereof. Such consent (which may be signed in
counterparts) shall have the same force and effect as a unanimous vote of the
shareholders, and may be stated as such in any articles or document filed with
the office of the Secretary of State of Colorado under the Colorado Corporation
Code, or other governmental agency.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors, except as otherwise provided in the
Colorado Corporation Code, the Articles of Incorporation or these Bylaws.
Section 2. NUMBER, ELECTION, TENURE AND QUALIFICATIONS. The number of
Directors of the corporation shall be three (3), which number may be increased
or decreased pursuant to these Bylaws by a resolution of the Shareholders of the
Company, but shall never be less than three (3), provided that (a) if there is
no stock outstanding, the number of Directors may be less than three (3), but
not less than one (1); and (b) if there is stock outstanding, and so long as
there are less than three (3) shareholders, the number of Directors may be less
than three (3), but not less than the number of shareholders. Directors shall
be elected at each annual meeting of the shareholders. Each Director shall hold
office until the next annual meeting of the shareholders and thereafter until
his successor shall have been elected and qualified, or until his earlier death,
resignation or removal. Directors must be at least eighteen years old but need
not be residents of Colorado or shareholders of the corporation.
Section 3. VACANCIES. Any Director may resign at any time by giving
written notice to the president or to the secretary of the corporation. A
Director's resignation shall take effect at the time specified in such notice,
and unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective. Any vacancy occurring in the Board of
Directors may be filled by the holders of a majority of the shares of the
corporation then entitled to vote. 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 an election at a meeting of the shareholders entitled to vote
called for that purpose, and a Director so chosen shall hold office for the term
specified in Section 2 above.
Section 4. REMOVAL. By written consent of all shareholders then
entitled to vote or at a meeting called expressly for that purpose, the entire
Board of Directors or any lesser number may be removed, with or without cause,
by a vote of the holders of the majority of shares then entitled to vote at an
election of Directors; except that if the holders of shares of any class of
stock are entitled to elect one or more Directors by the provisions of the
Articles of Incorporation, the provisions of this section shall apply, with
respect to the removal of a Director or Directors so elected by such class, to
the vote of the holders of the outstanding shares of that class and not to the
vote of the outstanding shares as a whole.
Section 5. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held immediately after and at the same place as the annual
meeting of the shareholders, or as soon as practicable thereafter at the time
and place, either within or outside Colorado, determined by the Board, for the
purpose of electing officers and for the transaction of such other business as
may come before the meeting. The Board of Directors may provide by resolution
the time and place, either within or outside Colorado, for the holding of
additional regular meetings.
Section 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the president or any two
Directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place as the place, either within or outside
Colorado, for holding any special meeting of the Board
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called by them.
Section 7. NOTICE. Notice of each meeting of the Board of Directors
stating the place, day and hour of the meeting shall be given to each Director
at least five days prior thereto by the mailing of written notice by first
class, certified or registered mail, or at least two days prior thereby personal
delivery of written notice or by telephonic or telegraphic notice, except that
in the case of a meeting to be held pursuant to Section 12 of this Article
telephone notice may be given one day prior thereto. (The method of notice need
not be the same to each Director.) Notice shall be deemed to be given, if
mailed, when deposited in the United States mail, with postage thereon prepaid,
addressed to the Director at his business or residence address; if personally
delivered, when delivered to the Director; if telegraphed, when the telegram is
delivered to the telegraph company; if telephoned, when communicated to the
Director. Any Director may waive notice of any meeting. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting unless otherwise required by statute.
Section 8. PRESUMPTION OF ASSENT. A Director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof and shall forward such dissent by
registered mail to the secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
Section 9. QUORUM AND VOTING. A majority of the Directors fixed by
Section 2 of this Article, present in person, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, and the vote
of a majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. If less than a quorum is present at
a meeting, a majority of the Directors present may adjourn the meeting from time
to time without further notice other than an announcement at the meeting, until
a quorum shall be present. No Director may vote or act by proxy at any meeting
of Directors.
Section 10. 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 such meeting; or a stated
salary as Director. No such payment shall preclude any Director from serving
the corporation in any other capacity and receiving compensation therefore
Section 11. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors, by
resolution, may designate from among its members an executive committee and one
or more other committees, each of which, to the extent provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the Board of Directors, except as prohibited by statute. The
delegation of authority to any committee shall not operate to relieve the Board
of Directors or any member of the Board from any responsibility imposed by law.
Rules governing procedures for meetings of any committee of the Board shall be
as established by the Board of Directors, or in the absence thereof by the
committee itself.
Section 12. MEETINGS BY TELEPHONE. Unless otherwise provided by the
Articles of Incorporation, members of the Board of Directors or any committee
thereof may participate in a meeting of the Board or committee by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at a meeting of the Directors or any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the Directors or committee members entitled to vote
with respect to the subject matter thereof. Such consent (which may be signed
in counterparts) shall have the same force and effect as a unanimous vote of the
Directors or committee members, and may be stated as such in any articles or
documents filed with the office of the Secretary of State of Colorado under the
Colorado Corporation Code, or other governmental agency.
ARTICLE IV.
OFFICERS AND AGENTS
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Section 1. NUMBER AND QUALIFICATIONS. The officers of the corporation
shall be at least a president, a secretary and a treasurer. The Board of
Directors may also elect or appoint such other officers, assistant officers and
agents, including a chairman of the Board, one or more vice-presidents, a
controller, assistant secretaries and assistant treasurers, as it may consider
necessary. One person may hold more than one office at a time, except that no
person may simultaneously hold the offices of president and secretary. All
officers must be at least eighteen years old.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected by the Board of Directors annually at the first
meeting of the Board held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified, or
until his earlier death, resignation or removal.
Section 3. SALARIES. The salaries of the officers shall be as fixed
from time to time by the Board of Directors, and no officer shall be prevented
from receiving a salary by reason of the fact that he is also a Director of the
corporation.
Section 4. REMOVAL. Any officer or agent may be removed by the Board
of Directors whenever in its judgment the best interests of the corporation will
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
or agent shall not in itself create contract rights.
Section 5. VACANCIES. Any officer may resign at any time, subject to
any rights or obligations under any existing contracts between the officer and
the corporation, by giving written notice to the president or to the Board of
Directors. An officer's resignation shall take effect at the time specified in
such notice; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. A vacancy in any
office, however occurring, may be filled by the Board of Directors for the
unexpired portion of the term.
Section 6. AUTHORITY AND DUTIES OF OFFICERS. The officers of the
corporation shall have the authority and shall exercise the powers and perform
the duties specified below and as may be additionally specified by the
president, the Board of Directors or these Bylaws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law:
(a) PRESIDENT. The president shall, subject to the direction and
supervision of the Board of Directors, (i) be the chief executive officer of the
corporation and have general and active control of its affairs and business and
general supervision of its officers, agents and employees; (ii) unless there is
a chairman of the Board, preside at all meetings of the shareholders and of the
Board of Directors; (iii) see that all orders and resolutions of the Board of
Directors are carried into effect; and (iv) perform all other duties incident to
the office of president and as from time to time may be assigned to him by the
Board of Directors.
(b) VICE-PRESIDENT. The vice-president, if any, (or if there is more than
one then each vice-president) shall assist the president and shall perform such
duties as may be assigned to him by the president or by the Board of Directors.
The vice-president, if there is one (or if there is more than one then the vice-
president designated by the Board of Directors, or if there be no such
designation then the vice-presidents in order of their election), shall, at the
request of the president, or in his absence or inability or refusal to act,
perform the duties of the president and when so acting shall have all the powers
of and be subject to all the restrictions upon the president.
(c) SECRETARY. The secretary shall: (i) keep the minutes of the
proceedings of the shareholders, the Board of Directors and any committees of
the shareholders or the Board; (ii) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (iii) be
custodian of the corporate records and of the seal of the corporation; (iv) keep
at the corporation's registered office or principal place of business within or
outside Colorado a record containing the names and addresses of all shareholders
and the number and class of shares held by each, unless such a record shall be
kept at the office of the corporation's transfer agent or registrar; and (v) in
general, perform all duties incident to the office or secretary and such other
duties as from time to time may be assigned to him by the president or by the
Board of Directors. Assistant secretaries, if any, shall have the same duties
and powers, subject to supervision by the secretary.
(d) TREASURER. The treasurer shall: (i) be the principal financial
officer of the corporation and have the
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care and custody of all its funds, securities, evidences of indebtedness and
other personal property and deposit the same in accordance with the instructions
of the Board of Directors; (ii) receive and give receipts and acquittances for
moneys paid in or on account of the corporation, and pay out of the funds on
hand all bills, payrolls and other just debts of the corporation of whatever
nature upon maturity; (iii) unless there is a controller, be the principal
accounting officer of the corporation and as such prescribe and maintain the
methods and systems of accounting to be followed, keep complete books and
records of account, prepare and file all local, state and federal tax returns
and related documents, prescribe and maintain an adequate system of internal
audit, and prepare and furnish to the president and the Board of Directors
statements of account showing the financial position of the corporation and the
results of its operations; (iv) upon request of the Board, make such reports to
it as may be required at any time; and (v) perform all other duties incident to
the office of treasurer and such other duties as from time to time may be
assigned to him by the president or the Board of Directors. Assistant
treasurers, if any, shall have the same powers and duties, subject to the
supervision by treasurer.
Section 7. SURETY BONDS. The Board of Directors may require any
officer or agent of the corporation to execute to the corporation a bond in such
sums and with such sureties as shall be satisfactory to the Board, conditioned
upon the faithful performance of his duties and for the restoration to the
corporation of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
ARTICLE V.
STOCK
Section 1. ISSUANCE OF SHARES. The issuance or sale by the corporation
of any shares of its authorized capital stock of any class, including treasury
shares, shall be made only upon authorization by the Board of Directors, except
as otherwise may be provided by statute.
Section 2. CERTIFICATES. The shares of stock of the corporation shall
be represented by consecutively numbered certificates signed in the name of the
corporation by the chairman or vice-chairman of the Board of Directors or by the
president or a vice-president and the treasurer or an assistant treasurer or by
the secretary or an assistant secretary, and shall be sealed with the seal of
the corporation, or with a facsimile thereof. The signatures of the
corporation's officers on any certificate may also 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 or whose facsimile signature has been placed upon
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. Certificates of stock shall be in such
form consistent with law as shall be prescribed by the Board of Directors. No
certificate shall be issued until the shares represented thereby are fully paid.
Section 3. CONSIDERATION FOR SHARES. Shares shall be issued for such
consideration expressed in dollars (but not less than the par value thereof) as
shall be fixed from time to time by the Board of Directors. Such consideration
may consist, in whole or in part, of money, other property, tangible or
intangible, or labor or services actually performed for the corporation, but
neither the promissory note of a subscriber or direct purchaser of shares from
the corporation, nor the unsecured or nonnegotiable promissory note of any other
person, nor future services shall constitute payment or part payment for shares.
Treasury shares shall be disposed of for such consideration expressed in dollars
as may be fixed from time to time by the Board.
Section 4. LOST CERTIFICATES. In case of the alleged loss, destruction
or mutilation of a certificate of stock the Board of Directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as it may prescribe. The Board of Directors may in its
discretion require a bond in such form and amount and with such surety as it may
determine, before issuing a new certificate.
Section 5. TRANSFER OF SHARES. Upon surrender to the corporation or to
a transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, and cancel the old certificate. Every such
transfer of stock shall be entered on the stock books of the corporation.
Section 6. HOLDER OF RECORD. The corporation shall be entitled to
treat the holder of record of any share of stock as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or other claim to
or interest in such shares on the part of any other person whether or not it
shall have express or other notice thereof, except as may be required by the
laws of Colorado.
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Section 7. SHARES HELD FOR THE ACCOUNT OF A SPECIFIED PERSON OR
PERSONS. The Board of Directors, in the manner provided by the statutes of
Colorado, may adopt a procedure whereby a shareholder of the corporation may
certify in writing to the corporation that all or a portion of the shares
registered in the name of such shareholder are held for the account of a
specified person or persons.
Section 8. TRANSFER AGENTS, REGISTRARS AND PAYING AGENTS. The Board of
Directors may at its discretion appoint one or more transfer agents, registrars
or agents for making payment upon any class of stock, bond, debenture or other
security of the corporation. Such agents and registrars may be located either
within or outside Colorado. They shall have such rights and duties and shall be
entitled to such compensation as may be agreed.
ARTICLE VI.
INDEMNIFICATION
Section 1. DEFINITIONS. For purposes of this Article VI, the following
terms shall have the meanings set forth below:
(a) ACTION. Any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative;
(b) DERIVATIVE ACTION. Any action by or in the right of the corporation
or procure a judgment in its favor;
(c) THIRD PARTY ACTION. Any action other than a derivative action; and
(d) INDEMNIFIED PARTY. Any person who is or was a party or is threatened
to be made a party to any action by reason of the fact that he is or was a
Director, officer, employee, fiduciary or agent of the corporation or is or was
serving at the request of the corporation as a Director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture, trust or
other enterprise, including without limitation any employee benefit plan of the
corporation for which any such person is or was serving as trustee, plan
administrator or other fiduciary.
Section 2. THIRD PARTY ACTIONS. The corporation shall indemnify any
Indemnified Party against expenses (including attorney fees), judgments, fines,
excise taxes and amounts paid in settlement actually and reasonably incurred by
him in connection with any third party action if, as determined pursuant to
Section 6 below, he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful. The termination of any third party action by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not of itself create either a presumption that the Indemnified Party did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation or, with respect to any
criminal action, a presumption that the Indemnified Party had reasonable cause
to believe this his conduct was unlawful.
Section 3. OTHER INDEMNIFICATION. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which any person
may be entitled under the Articles of Incorporation, any agreement, any other
provision of these Bylaws, vote of the members or disinterested Directors or
otherwise, and any procedure provided for by any of the foregoing, both as to
action in his official capacity and as to action in another capacity while
holding such office.
Section 4. DERIVATIVE ACTIONS. The corporation shall indemnify any
Indemnified Party against expenses (including attorney fees) actually and
reasonably incurred by him in connection with the defense or settlement of any
derivative action if, as determined pursuant to Section 6 below, he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person is or has been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation unless and only to the extent that the court in which
such action was brought determines upon application that, despite the
adjudication of liability and in view of all circumstances of the case, such
Indemnified Party is fairly and reasonably entitled to indemnification for such
expenses which such court deems proper. If any claim that may be made by or in
the right of the corporation against any person who may seek indemnification
under this Article VI is joined with any claim by any other party against such
person in a single action, the claim by or in the right of the corporation (and
all expenses related thereto) shall nevertheless be deemed the subject of a
separate and distinct derivative action for purposes of this Article VI.
7
<PAGE>
Section 5. SUCCESS ON MERITS OR OTHERWISE. If and to the extent that
any Indemnified Party has been successful on the merits or otherwise in defense
of any action referred to in Section 2 or 3 of this Article VI, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorney fees) actually and reasonably incurred by him in connection
therewith without the necessity of any determination that he has met the
applicable standards of conduct set forth in Section 2 or 3 of this Article VI.
Section 6. DETERMINATION. Except as provided in Section 4, any
indemnification under Section 2 or 3 of this Article VI (unless ordered by a
court) shall be made by the corporation only upon a determination that
indemnification of the Indemnified Party is proper in the circumstances because
he has met the applicable standards of conduct set forth in said Section 2 or 3.
Any indemnification under Section 4 of this Article VI (unless ordered by a
court) shall be made by the corporation only upon a determination by the
corporation of the extent to which the Indemnified Party has been or would have
been successful on the merits or otherwise. Any such determination shall be
made (a) by a majority vote of a quorum of the whole Board of Directors
consisting of Directors who are not or were not parties to the subject action or
(b) upon the request of a majority of the Directors who are not or were not
parties to such action, or if there be none, upon the request of a majority of a
quorum of the whole Board of Directors, by independent legal counsel (which
counsel shall not be the counsel generally employed by the corporation in
connection with its corporate affairs) in a written opinion, or (c) by the
shareholders of the corporation at a meeting called for such purpose.
Section 7. PAYMENT IN ADVANCE. Expenses (including attorney fees) or
some part thereof incurred by an Indemnified Party in defending any action,
shall be paid by the corporation in advance of the final disposition of such
action if a determination to make such payment is made on behalf of the
corporation as provided in Section 6 of this Article VI; provided that no such
payment may be made unless the corporation shall have first received a written
undertaking by or on behalf of the Indemnified Party to repay such amount unless
it is ultimately determined that he is entitled to be indemnified by the
corporation as authorized in this Article VI.
Section 8. OTHER INDEMNIFICATION. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which any
Indemnified Party or other person may be entitled under the Articles of
Incorporation, any agreement, Bylaw (including without limitation any other or
further Section or provision of this Article VI), vote of the shareholders or
disinterested Directors or otherwise, and any procedure provided for by any of
the foregoing, both as to action in his official capacity and as to action in
any capacity while holding such office.
Section 9. PERIOD OF INDEMNIFICATION. Any indemnification pursuant to
this Article VI shall be applicable to acts or omissions which occurred prior to
the adoption of this Article VI, shall continue as to any Indemnified Party who
has ceased to be a Director, officer, employee or agent of the corporation or,
at the request of the corporation, was serving as and has since ceased to be a
Director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise, including, without
limitation, any employee benefit plan of the corporation for which any such
person served as trustee, plan administrator or other fiduciary, and shall inure
to the benefit of the heirs and personal representatives of such Indemnified
Party. The repeal or amendment of this Article VI or of any Section or
provision thereof which would have the effect of limiting, qualifying or
restricting any of the powers or rights of indemnification provided or permitted
in this Article VI shall not, solely by reason of such repeal or amendment,
eliminate, restrict or otherwise affect the right or power of the corporation to
indemnify any person, or affect any right of indemnification of such person,
with respect to any acts or omissions which occurred prior to such repeal or
amendment.
Section 10. INSURANCE. By action of the Board of Directors,
notwithstanding any interest of the Directors in such action, the corporation
may purchase and maintain insurance, in such amounts as the Board may deem
appropriate, on behalf of any Indemnified Party against any liability asserted
against him and incurred by him in his capacity of or arising out of his status
as an agent of the corporation, whether or not the corporation would have the
power to indemnify him against such liability under applicable provisions of
law.
Section 11. RIGHT TO IMPOSE CONDITIONS TO INDEMNIFICATION. The
corporation shall have the right to impose, as conditions to any indemnification
provided or permitted in this Article VI, such reasonable requirements and
conditions as the Board of Directors or shareholders may deem appropriate in
each specific case and circumstances including but not limited to any one or
more of the following: (a) that any counsel representing the person to be
indemnified in connection with the defense or settlement of any Action shall be
counsel that is mutually agreeable to the person to be indemnified and to the
corporation; (b) that the corporation shall have the right, at its option, to
assume and control the defense or settlement of any claim or proceeding made,
initiated or threatened against the person to be indemnified; and (c) that the
corporation shall be subrogated, to the extent of any payments made by way of
indemnification, to all of the
8
<PAGE>
indemnified person's right of recovery, and that the person to be indemnified
shall execute all writings to do everything necessary to assure such rights of
subrogation to the corporation.
ARTICLE VII.
MISCELLANEOUS
Section 1. WAIVERS OF NOTICE. Whenever notice is required by law, by
the Articles of incorporation or by these Bylaws, a waiver thereof in writing
signed by the Director, shareholder or other person entitled to said notice,
whether before or after the time stated therein, or his appearance at such
meeting in person or (in the case of a shareholders' meeting) by proxy, shall be
equivalent to such notice.
Section 2. VOTING OF SECURITIES BY THE CORPORATION. Unless otherwise
provided by resolution of the Board of Directors, on behalf of the corporation
the president or any vice-president shall attend in person or by substitute
appointed by him, or shall execute written instruments appointing a proxy or
proxies to represent the corporation at, all meetings of the shareholders of any
other corporation, association or other entity in which the corporation holds
any stock or other securities, and may execute written waivers of notice with
respect to any such meetings. At all such meetings and otherwise, the president
or any vice-president, in person or by substitute or proxy as aforesaid, may
vote the stock or other securities so held by the corporation and may execute
written consents and any other instruments with respect to such stock or
securities and may exercise any and all rights and powers incident to the
ownership of said stock or securities, subject, however, to the instructions, if
any, of the Board of Directors.
Section 3. SEAL. The corporate seal of the corporation shall be
circular in form and shall contain the name of the corporation, the year of its
organization and the words "Seal, Colorado."
Section 4. FISCAL YEAR. The fiscal year of the corporation shall be as
established by the Board of Directors.
Section 5. AMENDMENTS. These Bylaws may be altered, amended or
repealed at any regular or special meeting of the Board of Directors.
DATED effective as of this 2nd day of June, 1992.
9
<PAGE>
EXHIBIT 4.4
<PAGE>
FIRST AMENDMENT TO
BYLAWS OF
BEVERAGE INTERNATIONAL GROUP, LTD.
Pursuant to the terms of the Colorado Business Corporation Act and Article
VII, Section 5 of the Bylaws of Beverage International Group, Ltd. (the
"Corporation"), the Corporation hereby adopts the following First Amendment to
the Corporation's Bylaws (the "Bylaws"):
1. Article 1, Section I of the Corporation's Bylaws shall be amended by
deleting therefrom in its entirety, the first sentence and by substituting in
lieu thereof, the following sentence:
"The initial principal office of the corporation is set forth in the
Articles of Incorporation."
2. Article III, Section 2 of the Corporation's Bylaws shall be amended by
deleting therefrom in its entirety, the first sentence and by substituting in
lieu thereof, the following sentence:
"The number of Directors of the corporation shall be five (5), which number
may be increased or decreased pursuant to these Bylaws by a resolution of
the Directors of the Company, but shall never be less than three (3),
provided that (a) if there is no stock outstanding, the number of Directors
may be less than three (3), but not less than one (1); and (b) if there is
stock outstanding, and so long as there are less than three (3)
shareholders, the number of Directors may be less than three (3), but not
less than the number of shareholders."
3. Article IV, Section I of the Corporation's Bylaws shall be amended by
deleting therefrom the entire paragraph and by substituting in lieu thereof, the
following paragraph:
Section 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation
may consist of a president, a secretary, a treasurer and such other
officers, including a chairman of the board, one or more vice-presidents
and a controller, as may from time to time be elected or appointed by the
board. In addition, the board of directors or the president may elect or
appoint such assistant and other subordinate officers, including assistant
vice presidents, assistant secretaries and assist treasurers, as it or he
or she shall deem necessary or appropriate. Any number of offices may be
held by the same person. All officers must be natural persons who are
eighteen years of age or older.
4. Article V, Section 3 of the Corporation's Bylaws shall be amended by
deleting therefrom the entire paragraph and by substituting in lieu thereof the
following paragraph:
Section 3. CONSIDERATION FOR SHARES. Shares shall be issued for such
consideration expressed in dollars as shall be fixed from time to time by
the Board of Directors. The Board of Directors may authorize the ISSUANCE
of shares for consideration consisting of any tangible or intangible
property or benefit to the Corporation, including cash, promissory notes,
services performed, and other securities of the Corporation. The
promissory note of a subscriber or an affiliate of the subscriber for
shares shall not constitute consideration for the Shares unless the note is
negotiable and secured by collateral, other than the shares having a fair
market value at least equal to the principal amount of the note. Future
services are not valid consideration for shares. When the Corporation
receives the consideration for which the Board of Directors has authorized
the issuance of shares, the shares issued therefor are fully paid and
nonassessable. Shares having a par value may be issued for less than par
value.
5. Article VI the Corporation's Bylaws shall be amended by deleting
therefrom the entire Article and by substituting in lieu thereof, the following
Article:
ARTICLE VI
INDEMNIFICATION
Section 1. DEFINITIONS. For purposes of this Article, the following
terms shall have the meanings set forth below:
(a) ACT. The term "Act" means the Colorado Business Corporation
Act as it exists on
<PAGE>
the date of the adoption of this Article and as it may hereafter be amended
from time to time, but in the case of any amendment, only to the extent
that the amendment permits the Corporation to provide broader
indemnification rights than the Act permitted the Corporation to provide at
the date of the adoption of this Article and prior to the amendment.
(b) CORPORATION. The term "Corporation" means the Corporation and,
in addition to the resulting or surviving corporation, any domestic or
foreign predecessor entity of the Corporation in a merger, consolidation or
other transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(c) DIRECTOR. The term "Director" means an individual who is or was
a director of the Corporation or an individual who, while a director of the
Corporation is or was serving at the Corporation's request as a director,
officer, partner, trustee, employee, fiduciary of any other domestic or
foreign corporation or other person or of an employee benefit plan. A
director is considered to be serving an employee benefit plan at the
Corporation's request if his or her duties to the Corporation also impose
duties on, or otherwise involve services by, the director to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
(d) EXPENSES. The term "Expenses" means the actual and reasonable
expenses (including, but not limited to, expenses of investigation and
preparation and fees and disbursements of counsel, accountants or other
experts) incurred by a party in connection with a proceeding.
(e) LIABILITY. The term "Liability" means the obligation incurred
with respect to a proceeding to pay a judgment, settlement, penalty, fine,
including an excise tax assessed with respect to an employee benefit plan,
or reasonable Expenses.
(f) PAY. The term "Party" means a person who was, is, or is
threatened to be made a named defendant or respondent in a Proceeding by
reason of the fact that he or she is or was a Director, officer, employee,
fiduciary or agent of the corporation or is or was serving at the request
of the corporation as a Director, officer, employee, fiduciary or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including without limitation any employee benefit plan of the corporation
for which any such person is or was serving as trustee, plan administrator
or other fiduciary.
(g) PROCEEDING. The term "Proceeding" means any threatened, pending
or completed action, suit, or proceeding, or any appeal thereon, whether
civil, criminal, administrative, arbitrative or investigative (including an
action by or in the right of the Corporation), and whether formal or
informal.
Section 2. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify
any Party to a Proceeding against Liability incurred in, relating to or as a
result of the Proceeding to the fullest extent permitted by law (including,
without limitation, in circumstances in which, in the absence of this Section,
indemnification would be (a) discretionary under the Act or (b) limited or
subject to particular standards of conduct under the Act).
Section 3. ADVANCEMENT OF EXPENSES. In the event of any Proceeding in
which a Party is involved or which may give rise to a right of indemnification
under this Article, following written request to the Corporation by the Party
pursuant to Section 7-109-104(l) of the Act, the Corporation shall pay to the
Party, to the fullest extent permitted by law (including, without limitation, in
circumstances in which, in the absence of this Section 6.02, advancement of
Expenses would be (a) discretionary under the Act or (b) limited or subject to
particular standards of conduct under the Act), amounts to cover Expenses
incurred by the Party in, relating to or as a result of such Proceeding in
advance of its final disposition.
Section 4. BURDEN OF PROOF. If under applicable law the entitlement of
a Party to be indemnified or advanced Expenses hereunder depends upon whether a
standard of conduct has been met, the burden of proof of establishing that the
Party did not act in accordance with such standard shall rest with the
Corporation. A Party shall be presumed to have acted in accordance with such
standard and to be entitled to indemnification or the advancement of Expenses
(as the case may be) unless, based upon a preponderance of the evidence, it
shall be determined that the Party
2
<PAGE>
has not met such standard. Such determination and any evaluation as to the
reasonableness of amounts claimed by a Party shall be made by the board of
directors of the Corporation or such other body or persons as may be permitted
by the Act. Subject to any express limitation of the Act, if so requested by
the Party, such determination and evaluation as to the reasonableness of the
amounts claimed by the Party shall be made by independent counsel who is
selected by the Party and approved by the Corporation (which approval shall not
be unreasonably withheld). For purposes of this Article, unless otherwise
expressly stated, the termination of any Proceeding by judgment, order,
settlement (whether with or without court approval) or conviction or upon a plea
of nolo contenders or its equivalent, shall not create a presumption that a
Party did not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not permitted by
applicable law.
Section 5. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt
by a Party of notice of the commencement of any Proceeding, the Party shall if a
claim in respect thereof is to be made against the Corporation under this
Article, notify the Corporation in writing of the commencement thereof,
provided, however, that delay in so notifying the Corporation shall not
constitute a waiver or release by the Party of any rights under this Article.
With respect to any such Proceeding: (a) the Corporation shall be entitled to
participate therein at its own expense, (b) any counsel representing the Party
to be indemnified in connection with the defense or settlement thereof shall be
counsel mutually agreeable to the Party and to the Corporation; and (c) the
Corporation shall have the right, at its option, to assume and control the
defense or settlement thereof, with counsel satisfactory to the Party. If the
Corporation assumes the defense of the Proceeding, the Party shall have the
right to employ its own counsel, but the fees and Expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense of
such Proceeding shall be at the expense of the Party unless (i) the employment
of such counsel has been specifically authorized by the Corporation, (ii) the
Party shall have reasonably concluded that there may be a conflict of interest
between the Corporation and the Party in the conduct of the defense of such
Proceedings, or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding. Notwithstanding the foregoing, if an
insurance carrier has supplied directors' and officers' liability insurance
covering a Proceeding and is entitled to retain counsel for the defense of such
Proceeding, then the insurance carrier shall retain counsel to conduct the
defense of such Proceeding unless the Party and the Corporation concur in
writing that the insurance carrier's doing so is undesirable. The Corporation
shall not be liable under this Article for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall not
settle any Proceeding in any manner that would impose any penalty or limitation
on a Party without the Party's written consent. Consent to a proposed
settlement of any Proceeding shall not be unreasonably withheld by either the
Corporation or the Party.
Section 6. ENFORCEMENT. The right to indemnification and advancement
of Expenses granted by this Article shall be enforceable in any court of
competent jurisdiction if the Corporation denies the claim, in whole or in part,
or if no disposition of such claim is made within ninety (90) days after the
written request for indemnification or advancement of Expenses is received. If
successful in whole or in part in such suit, the Party's Expenses incurred in
bringing and prosecuting such claim shall also be paid by the Corporation.
Whether or not the Party has met any applicable standard of conduct, the court
in such suit may order indemnification or the advancement of Expenses as the
court deems proper (subject to any express limitation of the Act). Further, the
Corporation shall indemnify a Party from and against any and all Expenses and,
if requested by the Party, shall (within 10 business days of such request)
advance such Expenses to the Party which are incurred by the party in connection
with any claim asserted against or suit brought by the Party for recovery under
any directors' and officers' liability insurance policies maintained by the
Corporation, regardless of whether the Party is unsuccessful in whole or in part
in such claim or suit.
Section 7. SUBROGATION. In the event of any payment under this
Article, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of the indemnified Party, who shall execute all
papers and do everything that may be necessary to assure such rights of
subrogation to the Corporation.
Section 8. OTHER PAYMENTS. The Corporation shall not be liable under
this Article to make any payment in connection with any Proceeding against or
involving a Party to the extent the Party has otherwise actually received
payment (under any insurance policy, agreement or otherwise) of the amounts
otherwise indemnifiable hereunder. A Party shall repay to the Corporation the
amount of any payment the Corporation makes to the Party under this Article in
connection with any Proceeding against or involving the Party, to the extent the
Party has otherwise actually received payment (under any insurance policy,
agreement or otherwise) of such amount.
Section 9. INSURANCE. So long as any Party who is or was an officer or
director of the Corporation may be subject to any possible Proceeding by reason
of the fact that he is or was an officer or director of the Corporation (or is
or was serving in any one or more of the other capacities covered by this
Article during his tenure as officer or
3
<PAGE>
director), and in the event that the Corporation maintains an insurance policy
or policies providing directors' and officers' liability insurance, such officer
or director shall be covered by such policy or policies in accordance with its
or their terms to the maximum extent of the coverage applicable to any then
current officer or director of the Corporation, or the Corporation shall
purchase and maintain in effect for the benefit of such officer or director one
or more valid, binding and enforceable policy or policies of directors' and
officers' liability insurance providing, in all respects, coverage at least
comparable to that provided to any then current officer or director at the
Corporation.
Section 10. OTHER RIGHTS AND REMEDIES. The rights to indemnification
and advancement of Expenses provided in this Article shall be in addition to any
other rights to which a Party may have or hereafter acquire under any law,
provision of the Articles of Incorporation, any other or further provision of
these Bylaws, vote of the shareholders or directors, agreement or otherwise.
The Corporation shaft have the right, but shall not be obligated, to indemnify
or advance Expenses to any agent of the Corporation not otherwise covered by
this Article in accordance with and to the fullest extent permitted by the Act.
Section 11. APPLICABILITY; EFFECT. The rights to indemnification and
advancement of Expenses provided in this Article shall be applicable to acts
or omissions that occurred prior to the adoption of this Article, shall
continue as to any Party during the period such Party serves in any one or
more of the capacities covered by this Article, shall continue thereafter so
long as the Party may be subject to any possible Proceeding by reason of the
fact that he served in any one or more of the capacities covered by this
Article, and shall inure to the benefit of the estate and personal
representatives of each such person. Any repeal or modification of this
Article or of any Section or provision hereof shall not adversely affect any
rights or obligations then existing. All rights to indemnification under
this Article shall be deemed to be provided by a contract between the
Corporation and each Party covered hereby.
Section 12. SEVERABILITY.. If any provision of this Article shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of this
Article (including, without limitation, all portions of any Sections of this
Article containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (b) to the fullest extent
possible, the provisions of this Article (including, without limitation, all
portions of any Section of this Article containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent of this
Article that each Party covered hereby is entitled to the fullest protection
permitted by law.
6. By written informal action, unanimously taken by the Board of
Directors of the Corporation effective as of the 18th day of June, 1996,
pursuant to and in accordance with Section 7-108-202 of the Colorado Business
Corporation Act, the Board of Directors of the Corporation duly authorized the
foregoing amendment.
IN WITNESS WHEREOF, the Corporation has caused these presents to be signed
in its name and on its behalf by its President and attested by its Secretary,
and its President acknowledges that this Amendment is the act and deed of the
Corporation and the matters and facts set forth herein with respect to the
authorization and approval are true in all material respects to the best of his
knowledge, information and belief
BEVERAGE INTERNATIONAL GROUP, LTD.
By: /s/ Anthony G. Bottagaro
-----------------------------
Anthony G. Bottagaro
Chairman/President/CEO
ATTEST:
By: /s/ Dawn M. Lutz
-----------------------------
Dawn M. Lutz, Secretary
4
<PAGE>
EXHIBIT 4.5
<PAGE>
(Stock Certificate Front)
NUMBER SHARES
_______________ _______________
BEVERAGE INTERNATIONAL GROUP, LTD.
_______________ _______________
INCORPORATED UNDER THE LAWS OF THE STATE OF COLORADO
THIS CORPORATION IS AUTHORIZED TO ISSUE 50,000,000 SHARES
OF COMMON STOCK, PAR VALUE $0.001 PER SHARE
_______________________
CUSIP 087826 10 3
_______________________
SEE REVERSE
FOR CERTAIN DEFINITIONS
THIS IS TO CERTIFY THAT
IS THE REGISTERED HOLDER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
PAR VALUE $0.001 PER SHARE OF
BEVERAGE INTERNATIONAL GROUP, LTD.
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid unless countersigned by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of the Corporation's duly authorized officers.
Dated:
/s/ Dawn M. Lutz /S/ Anthony G. Bottagaro
[SEAL]
DAWN M. LUTZ ANTHONY G. BOTTAGARO
SECRETARY PRESIDENT, CHAIRMAN AND CEC
COUNTERSIGNED:
American Securities Transfer & Trust, Inc.
P.O. Box 1596
Denver, Colorado 80201
By _____________________________________
Transfer Agent & Registrar Authorized Signature
<PAGE>
(Stock Certificate Back)
BEVERAGE INTERNATIONAL GROUP, LTD.
The following abbreviations when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MINACT_....Custodian....
TEN ENT -as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ........................
in common (State)
Additional abbreviations may also be used though not in the above list
- --------------------------------------------------------------------------------
For Value Received, _____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
_____________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _____________________________________________
attorney-in-fact to transfer the said stock on the books of the within-named
Corporation, with full power of substitution in the premises.
Dated ___________________________
______________________________________________________
_______________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANCE WHATSOEVER.
Signature(s) Guaranteed:
________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program).
7
