BYLAWS OF
NORDSTROM CREDIT, INC.
ARTICLE I
Offices
The principal place of business of the corporation in the state of
Colorado shall be located at 13531 East Caley, Englewood, Colorado
80111. The corporation may have such other offices, either within or
without the state as the Board of Directors may designate or as the
business of the corporation may require from time to time.
The registered office of the corporation required by the Colorado
Business Corporation Act to be maintained in the state of Colorado may
be, but need not be, identical with the principal office in the state of
Colorado, and the address of the registered office and the registered
agent may be changed from time to time by the Board of Directors or by
officers designated by the Board of Directors upon filing a statement as
specified by law in the Office of the Secretary of State of Colorado.
The initial registered office and registered agent are as specified in
the Articles of Incorporation.
ARTICLE II
Shareholders
Section 1. Annual Meetings. The annual meeting of the
shareholders shall be held on the third Tuesday in the month of May in
each year at the hour of two o'clock p.m., or any other times as fixed
by action of the shareholders, for the purpose of electing directors and
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 in the
state of Colorado, 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 special meeting of the shareholders as soon thereafter as
conveniently may be.
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 by the Board of Directors,
or the 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. The Board of Directors may designate
any place, either within or without the state of Colorado, as the place
of meeting for any annual meeting or for any special meeting called by
the Board of Directors. A waiver of notice signed by all shareholders
entitled to vote at a meeting may designate any place, either within or
without the state of Colorado, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be 1501 Fifth Avenue,
Seattle, Washington 98101.
Section 4. Notice of Meetings. Written notice stating the place,
day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall, unless
otherwise prescribed by statute, be delivered not less than ten nor more
than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the President, or the Secretary, or the
persons calling the meeting, to each shareholder of record entitled to
vote at such meeting; except that (i) if the authorized shares are to be
increased, at least thirty days' notice shall be given, and (ii) when it
is proposed that all or substantially all of the property and assets of
the corporation be sold, leased, exchanged or otherwise disposed of
other than in the usual course of business or other than in liquidation
(but not by way of mortgage or pledge), at least twenty days' notice
shall be given. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
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 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 of the corporation may provide that the stock
transfer books shall be closed for a stated period but not to exceed, in
any case, fifty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to vote
at a meeting of shareholders, such books shall be closed for at least
ten 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
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 shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notice of the meeting
is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of
shareholders has been made, as provided in this section, such
determination shall apply to any adjournment thereof.
Section 6. Voting Record. For at least ten days before each
meeting, the officer or agent having charge of the stock transfer books
for shares of the corporation shall make and keep on file at the
registered office of the corporation a complete record of the
shareholders entitled to vote at that meeting of shareholders or any
adjournment thereof, arranged in alphabetical order, with the address of
and the number of shares held by each. That record shall be produced
and kept open at the principal office of the corporation and at the time
and place of the meeting and shall be subject to the inspection of any
shareholder during usual business hours of the corporation and during
the whole time of the meeting for the purposes thereof.
Section 7. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a
majority of outstanding shares are represented at a meeting, a majority
of the shares so represented may adjourn the meeting from time to time
without further notice. 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 noticed. The
shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
Section 8. Proxies. At all meetings of shareholders, a
shareholder may vote in person or by proxy executed in writing by the
shareholder or by 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 9. Voting of Shares. Each outstanding share entitled to vote
shall be entitled to one vote upon each matter submitted to a vote at a
meeting of shareholders and, if a quorum is present, the affirmative
vote of the majority of such shares represented at the meeting shall be
the act of the shareholders.
Section 10. Voting of Shares by Certain Holders. 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.
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 to do so be contained in an appropriate order of the court by
which such receiver is 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.
Neither shares of its own stock held by the corporation, nor those
held by another corporation if a majority of the shares entitled to vote
for the election of directors of such other corporation are held by the
corporation, shall be voted at any meeting or counted in determining the
total number of outstanding shares at any given time for purposes of any
meeting.
Section 11. Informal Action by Shareholders. Any action required
to be taken at a meeting of the shareholders, or any action which may be
taken at a meeting of the shareholders, may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by
all of the shareholders entitled to vote with respect to the subject
matter thereof. Such consent may be executed in counterparts and shall
be effective as of the date of the last signature thereon, unless the
consent specifies a different effective date. The record date for
determining shareholders entitled to take such action is the date the
first shareholder signs the consent.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of
directors of this corporation shall be no fewer than three; provided,
however, that if all outstanding shares are held of record by fewer than
three shareholders, then there need be only as many directors as there
are shareholders of record. Subject to such limitation, the number of
directors shall be fixed by resolution of the Board of Directors, and
may be increased or decreased by resolution of the Board of Directors,
but no decrease shall have the effect of shortening the term of any
incumbent director. Each director shall hold office until the next
annual meeting of shareholders and until his successor shall have been
elected and qualified, or until removed from office if earlier removed
with or without cause by affirmative vote of a majority of the
outstanding shares entitled to vote. Directors need not be residents of
the state of Colorado or shareholders of the corporation.
Section 3. Regular Meeting. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw immediately
after, and at the same place as, the annual meeting of shareholders.
The Board of Directors may provide, by resolution, the time and place,
either within or without the state of Colorado, for the holding of
additional regular meetings without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of
Directors or any committee designated by 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, either within or without the state of
Colorado, as the place for holding any special meeting of the Board of
Directors called by them.
Section 5. Notice. Notice of any special meeting shall be given
at least two days previously thereto by written notice delivered
personally or mailed to each director at his business address, or by
telegram. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company.
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 objects, at the beginning of the
meeting, to the holding of the meeting or the transacting of business at
the meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. Quorum. A majority of the number of directors fixed by
Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if
less than such majority is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without
further notice.
Section 7. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
Section 8. Action Without a Meeting. Any action that may be taken
by the Board of Directors at a meeting 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.
Section 9. Removal. Any director or the entire Board of Directors
may be removed, with or without cause, by affirmative vote of a majority
of the outstanding shares entitled to vote at a meeting of shareholders
called expressly for that purpose.
Section 10. Vacancies. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors.
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 may be filled by
election by the Board of Directors for a term of the office continuing
only until the next election of directors by the shareholders.
Section 11. Compensation. Unless and until otherwise provided by
resolution of the Board of Directors, no salary or fees shall be payable
to the directors for their services as directors or in connection with
their attendance at meetings of directors.
Section 12. 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 he objects at the beginning of such meeting to the
holding of such meeting or the transaction of business at such meeting,
he contemporaneously requests that his dissent shall be entered in the
minutes of the meeting, or he shall give his written dissent to such
action to the person acting as the presiding officer of the meeting
before the adjournment thereof, or 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 13. Telephonic Meetings. Members of the Board of
Directors or any committee designated by the Bylaws or appointed by the
Board of Directors may participate in a meeting of such Board or
committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other at the same time, and participation by such means shall
constitute presence in person at a meeting.
ARTICLE IV
Officers
Section 1. Number. The officers of the corporation shall be a
President, one or more Vice Presidents (the number thereof to be
determined by the Board of Directors), a Secretary, and a Treasurer,
each of whom shall be elected by the Board of Directors. In addition,
the Board of Directors may appoint one or more assistant secretaries and
assistant treasurers. Any two or more offices may be held by the same
person, except the offices of President and Secretary, except that when
all of the issued and outstanding stock of the corporation is owned of
record by one shareholder, one person may hold all or any combination of
offices.
Section 2. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of 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 death or until he shall resign or
shall have been removed in the manner hereinafter provided.
Section 3. Resignation or Removal. Any officer or agent may be
removed, with or without cause, 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 of itself create contract rights.
Section 4 . Vacancies . A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by
the Board of Directors for the unexpired portion of the term.
Section 5. President. The President shall have general
supervision and control over the business and affairs of the corporation
subject to the authority of the Board of Directors. He may sign, with
the Secretary or any other proper officer of the corporation thereunto
authorized by the Board of Directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed,
except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the corporation, or shall be required by law
to be otherwise signed or executed; he may sign any and all documents in
the ordinary course of business with or without the signature of a
second corporate officer; and in general shall perform all duties
incident to the office of President and such other duties, as may be
prescribed by the Board of Directors from time to time.
Section 6. The Vice President. In the absence of the President or
in the event of his death, inability or refusal to act, the Executive
Vice President, if one is designated, and otherwise the Vice Presidents
in the order designated at the time of their election or in the absence
of any designation, then in the order of their election, shall 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.
Any Vice President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the corporation and shall perform
such other duties as from time to time may be assigned to him by the
President or by the Board of Directors.
Section 7. The Secretary. The Secretary shall: (a) keep the
minutes of the proceedings of the shareholders and of the Board of
Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the corporate records
and of the seal of the corporation and see that the seal of the
corporation is affixed to all documents and the execution of which on
behalf of the corporation under its seal is duly authorized; (d) keep a
register of the post office address of each shareholder which shall be
furnished to the Secretary by such shareholders; (e) sign with the
President, or a Vice President, certificates for shares of the
corporation, or contracts, deeds or mortgages the issuance or execution
of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation subject to the authority delegated to a transfer agent or
registrar if appointed; and (g) in general perform all duties incident
to the office of Secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
Section 8. The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; (b) receive and give receipts for monies due and payable to
the corporation from any source whatsoever, and deposit all such monies
in the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of
Article VI of these Bylaws; and (c) in general perform all of the 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 by the Board of
Directors. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his duties in such sum and
with such surety or sureties as the Board of Directors shall determine.
Section 9. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries, when authorized by the Board of Directors, may
sign with the President or a Vice President certificates for shares of
the corporation or contracts, deeds or mortgages for the issuance or
execution of which shall have been authorized by a resolution of the
Board of Directors. The Assistant Treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sum and with such surety or sureties
as the Board of Directors shall determine. The Assistant Secretaries
and Assistant Treasurers, in general, shall perform such duties as shall
be assigned to them by the Secretary or the Treasurer, respectively, or
by the President or the Board of Directors.
Section 10. Compensation. The compensation of the officers shall
be fixed from time to time by the Board of Directors and no officer
shall be prevented from receiving such salary by reason of the fact that
he is also a director of the corporation. Election or appointment of an
officer shall not of itself create a contractual right to compensation
for services performed as such officer.
ARTICLE V
Executive Committee
Section 1. Appointment. The Board of Directors by resolution
adopted by a majority of the full Board, may designate two or more of
its members to constitute an Executive Committee. The designation of
such committee and the delegation thereto of authority shall not operate
to relieve the Board of Directors, or any member thereof, of any
responsibility imposed by law.
Section 2. Authority. The Executive Committee, when the Board of
Directors is not in session, shall have and may exercise all of the
authority of the Board of Directors except to the extent, if any, that
such authority shall be limited by the resolution appointing the
Executive Committee and except also that the Executive Committee shall
not have the authority to do any of the following: (i) declare
dividends or distributions; (ii) approve or recommend to shareholders
actions or proposals required by the Colorado Business Corporation Act
to be approved by shareholders; (iii) fill vacancies on the Board of
Directors or any committee thereof; (iv) amend these Bylaws; (v) approve
a plan of merger not requiring shareholder approval; (vi) reduce earned
or capital surplus; (vii) authorize or approve the reacquisition of
shares unless pursuant to a general formula or method specified by the
Board of Directors; or (viii) authorize or approve the issuance or sale
of or any contract to issue or sell shares, or designate the terms of a
series of a class of shares, except that the Board of Directors, having
acted regarding general authorization for the issuance or sale of shares
or any contract therefor and, in the case of a series, the designation
thereof, may, pursuant to a general formula or method specified by the
Board by resolution or by adoption of a stock option or other plan,
authorize a committee to fix the terms of any contract for the sale of
the shares and to fix the terms upon which such shares may be issued or
sold, including, without limitation, the price, the dividend rate,
provisions for redemption, sinking fund, conversion or voting or
preferential rights, and provision for other features of a class of
shares or a series of a class of shares, with full power in such
committee to adopt any final resolution setting forth all terms thereof
and to authorize the statement of the terms of a series for filing with
the Secretary of State under the Colorado Business Corporation Act.
Section 3. Tenure and Qualifications. Each member of the
Executive Committee shall hold office until the next regular annual
meeting of the Board of Directors following his designation and until
his successor is designated as a member of the Executive Committee and
is elected and qualified.
Section 4. Meetings. Regular meetings of the Executive Committee
may be held without notice at such times and places as the Executive
Committee may fix from time to time by resolution. Special meetings of
the Executive Committee may be called by any member thereof upon not
less than one day's notice stating the place, date and hour of the
meeting, which notice may be written or oral, and if mailed, shall be
deemed to be delivered when deposited in the United States mail
addressed to the member of the Executive Committee at his business
address. Any member of the Executive Committee may waive notice of any
meeting and no notice of any meeting need be given to any member thereof
who attends in person. The notice of a meeting of the Executive
Committee need not state the business proposed to be transacted at the
meeting.
Section 5. Quorum. A majority of the members of the Executive
Committee shall constitute a quorum for the transaction of business at
any meeting thereof and action of the Executive Committee must be
authorized by the affirmative vote of a majority of the members present
at a meeting at which a quorum is present.
Section 6. Action Without a Meeting. Any action that may be taken
by the Executive Committee at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be
signed by all of the members of the Executive Committee.
Section 7. Vacancies. Any vacancy in the Executive Committee may
be filled by a resolution adopted by a majority of the full Board of
Directors.
Section 8. Resignations and Removal. Any member of the Executive
Committee may be removed at any time with or without cause by resolution
adopted by a majority of the full Board of Directors. Any member of the
Executive Committee may resign from the Executive Committee at any time
by giving written notice to the President or Secretary of the
corporation, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 9. Procedure. The Executive Committee shall elect a
presiding officer from its members and may fix its own rules of
procedure which shall not be inconsistent with these Bylaws. It shall
keep regular minutes of its proceedings and report the same to the Board
of Directors for its information at the meeting thereof held next after
the proceedings shall have been taken.
ARTICLE VI
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the corporation, shall be signed by
such officers, agent or agents of the corporation and in such manner as
shall from time to time be determined by resolution of the Board of
Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the
Board of Directors may select.
ARTICLE VII
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form as shall be determined
by the Board of Directors. Such certificates shall be signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or by the Secretary or an Assistant Secretary and sealed with
the corporate seal or a facsimile thereof. The signatures of such
officers upon a certificate may be facsimiles if the certificate is
manually signed on behalf of a transfer agent, or registered by a
registrar, other than the corporation itself or one of its employees.
All certificates for shares shall be consecutively numbered or otherwise
identified. Each certificate representing shares shall state upon its
face (a) that the corporation is organized under the laws of the state
of Colorado, (b) the name of the person to whom issued, (c) the number
and class of the shares and the designation of the series, if any, that
the certificate represents, (d) the par value, if any, of each share
represented by the certificate and (e) any restrictions imposed by the
corporation upon the transfer of the shares represented by the
certificate. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the corporation.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except that in case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation, or with
its transfer agent, if any, and on surrender for cancellation of the
certificate for such shares. The person in whose name shares stand on
the books of the corporation shall be deemed by the corporation to be
the owner thereof for all purposes.
ARTICLE VIII
Fiscal Year
The fiscal year of the corporation shall begin on the first day of
February and end on the thirty-first day of January in each year.
ARTICLE IX
Dividends
The Board of Directors may, from time to time, declare and the
corporation may pay dividends on its outstanding shares in the manner,
and upon the terms and conditions provided by law and its Articles of
Incorporation.
ARTICLE X
Corporate Seal
The Board of Directors shall adopt a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the
corporation and the state of incorporation and the words, "Corporate
Seal."
ARTICLE XI
Waiver of Notice
Whenever any notice is required to be given to any shareholder or
director of the corporation under the provisions of these Bylaws or
under the provisions of the Articles of Incorporation or under the
provisions of the Colorado Business Corporation Act, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE XII
Amendments
These Bylaws may be altered, amended or repealed and new Bylaws may
be adopted by the Board of Directors at any regular or special meeting
of the Board of Directors.
ARTICLE XIII
Indemnification of Directors, Officers, and Others
Section 1. Definitions. As used in this Article XIII, (a)
"Corporation" includes 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; (b)
"Director or officer" means an individual who is or was a director or
officer of the corporation and an individual who, while a director or
officer of the corporation, is or was serving at the corporation's
request as a director, officer, partner, trustee, employee or agent of
any other foreign or domestic corporation or of any partnership, joint
venture, trust, other enterprise or employee benefit plan. A director
or officer shall be considered to be serving an employee benefit plan at
the corporation's request if his duties to the corporation also impose
duties on or otherwise involve services by him to the plan or to
participants in or beneficiaries of the plan. "Director or officer"
includes, unless the context otherwise requires, the estate or personal
representative of a director or officer; (c) "Expenses" includes
attorney fees; (d) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect
to an employee benefit plan) or reasonable expense incurred with respect
to a proceeding; (e) "Official capacity," when used with respect to a
director or officer, means the office of director or officer in the
corporation. "Official capacity" does not include service for any other
foreign or domestic corporation or for any partnership, joint venture,
trust, other enterprise, or employee benefit plan; (f) "Party" includes
an individual who was, is, or is threatened to be made a named defendant
or respondent in a proceeding; (g) "Proceeding" means any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative and whether formal or
informal.
Section 2. Mandatory Indemnification.
(a) Except as provided in paragraph (d) of this Section 2, the
corporation shall indemnify against liability incurred in any proceeding
an individual made a party to the proceeding because he is or was a
director or officer if:
(i) He conducted himself in good faith;
(ii) He reasonably believed:
(A) In the case of conduct in his official capacity with the
corporation, that his conduct was in the corporation's best interests;
or
(B) In all other cases, that his conduct was at least not opposed to
the corporation's best interests; and
(iii)In the case of any criminal proceeding, he had no reasonable cause
to believe his conduct was unlawful.
(b) A director's or officer's conduct with
respect to an employee benefit plan for a purpose he reasonably believed
to be in the interests of the participants in or beneficiaries of the
plan is conduct that satisfies the requirements of Section 2(a)(ii)(B).
A director's or officer's conduct with respect to an employee benefit
plan for a purpose that he did not reasonably believe to be in the
interests of the participants in or beneficiaries of the plan shall be
deemed not to satisfy the requirements of Section 2(a)(i).
(c) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, is not of itself determinative that the individual did not
meet the standard of conduct set forth in paragraph (a) of this Section
2.
(d) The corporation may not indemnify a director or
officer under this Section 2 either:
(i) 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
(ii) 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.
(e) Indemnification permitted under this Section 2 in
connection with a proceeding by or in the right of the corporation is
limited to reasonable expenses incurred in connection with the
proceeding.
Section 3. Authorization.
(a) The corporation shall not indemnify a director or
officer under Section 2 unless authorized in the specific case after a
determination has been made that indemnification of the director or
officer is permissible in the circumstances because he has met the
standard of conduct set forth in paragraph (a) of Section 2.
(b) The determination required to be made by paragraph
(a) of this Section 3 shall be made:
(i) By the Board of Directors by a majority vote of a quorum,
which quorum shall consist of directors not parties to the proceeding;
or
(ii) If a quorum cannot be obtained, by a majority vote of a
committee of the Board designated by the Board, which committee shall
consist of two or more directors not parties to the proceeding; except
that directors who are parties to the proceeding may participate in the
designation of directors for the committee.
(c) If the quorum cannot be obtained or the committee
cannot be established under paragraph (b) of this Section 3, or even if
a quorum is obtained or a committee designated if such quorum or
committee so directs, the determination required to be made by paragraph
(a) of this Section 3 shall be made:
(i) By independent legal counsel selected by a vote of the
Board of Directors or the committee in the manner specified in
subparagraph (i) or (ii) of paragraph (b) of this Section 3 or, if a
quorum of the full Board cannot be obtained and a committee cannot be
established, by independent legal counsel selected by a majority vote of
the full Board; or
(ii) By the shareholders.
(d) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is required; except that, if the
determination that indemnification is required is made by independent
legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by the body that selected said
counsel.
Section 4. Advance Payment.
(a) The corporation shall pay for or reimburse the
reasonable expenses incurred by a director or officer who is a party to
a proceeding in advance of the final disposition of the proceeding if:
(i) The director or officer furnishes the corporation a written
affirmation of his good-faith belief that he has met the standard of
conduct described in Section 2(a);
(ii) The director or officer furnishes the corporation a
written undertaking, executed personally or on his behalf, to repay the
advance if it is determined that he did not meet such standard of
conduct; and
(iii) A determination is made that the facts then known to
those making the determination would not preclude indemnification under
this Section 4.
(b) The undertaking required by subparagraph (ii) of
paragraph (a) of this Section 4 shall be an unlimited general obligation
of the director or officer, but need not be secured and may be accepted
without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under
this Section 4 shall be made in the manner specified in Section 3.
Section 5. Insurance. The corporation may purchase and maintain
insurance on behalf of a person who is or was a director, officer,
employee, fiduciary or agent of the corporation or who, while a
director, officer, employee, fiduciary or agent of the corporation, is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, fiduciary or agent of any other foreign or
domestic corporation or of any partnership, joint venture, trust, other
enterprise or employee benefit plan against any liability asserted
against or incurred by him in any such capacity or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
Article XIII. Any such insurance may be procured from any insurance
company designated by the Board of Directors of the corporation, whether
such insurance company is formed under the laws of Colorado or any other
jurisdiction of the United States or elsewhere, including any insurance
company in which the corporation has equity or any other interest,
through stock ownership or otherwise.
Section 6. Notice to Shareholders. Any indemnification of or
advance of expenses to a director or officer in accordance with this
section, if arising out of a proceeding by or on behalf of the
corporation, shall be reported in writing to the shareholders with or
before the notice of the next shareholders's meeting.