Exhibit 3.10
CLAIRE'S BOUTIQUES, INC.
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AMENDED AND RESTATED BYLAWS
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AMENDED AND RESTATED BYLAWS
OF
CLAIRE'S BOUTIQUES, INC.
1. OFFICES
1.1. Registered Office and Agent
The initial registered office of the Corporation shall be in Denver,
Colorado, and the initial registered agent in charge thereof shall be The
Corporation Company, 1675 Broadway, Suite 1200, Denver, Colorado 80202.
1.2. Other Offices
The Corporation may also have offices at such other places, both within
and without the State of Colorado, as the Board of Directors may from time to
time determine or as may be necessary or useful in connection with the business
of the Corporation.
2. MEETINGS OF SHAREHOLDERS
2.1. Annual Meetings
The Corporation shall hold annual meetings of shareholders on such date
and at such time as shall be designated from time to time by the Board of
Directors, the Chairman of the Board or the President, at which shareholders
shall elect directors and to such other business as may properly be brought
before the meeting.
2.2. Special Meetings
Special meetings of the shareholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the Board of Directors and
shall be called by the Corporation at the request in writing of shareholders
possessing at least ten percent (10%) of the voting power of the issued and
outstanding voting stock of the Corporation entitled to vote generally for the
election of directors. Such request shall include a statement of the purpose or
purposes of the proposed meeting. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice (except to
the extent that such notice is waived or is not required as provided in the
Colorado Business Corporation Act or these Bylaws)
2.3. Place of Meetings
All meetings of the shareholders shall be held at such place as may be
fixed from time to time by the Board of Directors or the Corporation.
2.4. Notice of Meetings
Notice of any meeting of shareholders, stating the place, date and hour of
the meeting, and (if it is a special meeting) the purpose or purposes for which
the meeting is called, shall be given to each shareholder entitled to vote at
such meeting not less than 10 nor more than 60 days before the date of the
meeting (except to the extent that such notice is waived or is not required by
the Colorado Business Corporation Act or these Bylaws); provided, however, if
the purpose of such meeting is to increase the authorized shares of the
Corporation, notice shall be given to each shareholder not less than 30 days
before the date of the meeting. Such notice shall be given in accordance with,
and shall be deemed effective as set forth in, Section 7-107-105 (or any
successor section) of the Colorado Business Corporation Act.
2.5. List of Shareholders
After the record date for a meeting of shareholders has been fixed, at
least 10 days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all shareholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be open to the examination of any shareholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
shareholder who is present at the time and place of the meeting.
2.6. Quorum at Meetings
Shareholders may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Except as otherwise provided by statute or
by the Articles of Incorporation, a majority of the shares entitled to be cast
on a matter, shall constitute a quorum at all meetings of the shareholders for
the transaction of business, Where a separate vote by a class or classes is
required, a majority of the shares entitled to be cast on a matter, shall
constitute a quorum entitled to take action on that matter. Once a share is
represented for any purpose at a meeting (other than solely to object (a) to
holding the meeting or transacting business at the meeting, or (b) (if it is a
special meeting) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented at
a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
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2.7. Voting and Proxies
Unless otherwise provided in the Colorado Business Corporation Act or in
the Articles of Incorporation, and subject to the other provisions of these
Bylaws, each shareholder shall be entitled to one vote on each matter, in person
or by proxy, for each share of the Corporation's capital stock that has voting
power and that is held by such shareholder; provided, however, that pursuant to
Section 7-102-102 of the Colorado Business Corporation Act, each shareholder
shall be entitled to cumulate his votes in the election of directors. No proxy
shall be voted or acted upon after eleven months from its date, unless the proxy
provides for a longer period. A duly executed appointment of proxy shall be
irrevocable if the appointment form states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
2.8. Required Vote
When a quorum is present at any meeting of shareholders, all matters
(except the election of directors) shall be determined, adopted and approved if
the votes cast favoring the action exceed the votes cast opposing the action,
unless the proposed action is one upon which, by express provision of statute or
the Articles of Incorporation, a different vote is specified and required, in
which case such express provision shall govern and control the decision of such
question. Where a separate vote by a class or classes is required and a quorum
exists with respect to such class or classes, the matter shall be determined,
adopted and approved if the votes cast favoring the action exceed the votes cast
opposing the action, unless the proposed action is one upon which, by express
provision of statute or the Articles of Incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, directors
shall be elected by a plurality of the votes of the shares entitled to vote on
the election of directors.
2.9. Organization and Procedure
The Chairman of the Board of the Corporation shall preside over every
shareholders' meeting unless the Board of Directors elect another person to
preside. The presiding officer will appoint any persons he or she deems
necessary to help with the meeting. The corporate secretary shall have
responsibility for preparing minutes of shareholders' meetings and for
authenticating records of the Corporation.
2.10. Adjournments
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. If the adjournment is for more
than 30 days, or if after adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
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2.11. Action Without a Meeting
Any action required or permitted to be taken at a shareholders' meeting
may be taken without a meeting, without prior notice and without a vote, if the
action is taken by all persons who would be entitled to vote on the matter. The
action must be evidenced by one or more written consents describing the action
taken, signed by the shareholders entitled to take action without a meeting, and
delivered to the Corporation in the manner prescribed by the Colorado Business
Corporation Act for inclusion in the minute book. Any consent shall be effective
according to its terms when the requisite consents are in the possession of the
Corporation to take the corporate action specified according to its terms when
the requisite consents are in the possession of the corporation.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Articles of Incorporation or as otherwise may be
provided in the Colorado Business Corporation Act. The Board of Directors may
elect a Chairman of the Board from among its members and shall designate, when
present, either the Chairman of the Board (if any) or the President to preside
at its meetings. If neither the Chairman of the Board nor the President is
present, the Board of Directors may designate another director to preside at
such meeting. The Chairman of the Board and the President may be the same
person. The Board of Directors may also elect one or more Vice Chairmen from
among its members, with such duties as the Board of Directors shall from time to
time prescribe.
3.2. Number, Election and Term of Office
The number of directors constituting the Board of Directors shall be
between one (1) and nine (9) as authorized from time to time by resolution of
the shareholders or of the Board of Directors. Directors shall be elected at
annual meetings of the shareholders, except as provided in Section 3.5 hereof,
and each director elected shall hold office until his or her successor is
elected and qualified or until his or her earlier death, resignation or removal.
Directors need not be shareholders.
3.3. Resignation
A director may resign at any time by giving written notice to the Chairman
of the Board, the President or the Secretary. Unless otherwise stated in such
notice of resignation, the acceptance thereof shall not be necessary to make it
effective; and such shall take effect at the time specified therein or, in the
absence of such specification, it shall take effect upon the receipt thereof.
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3.4. Removal
Any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors.
3.5. Vacancies
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by the affirmative vote of
directors having a majority of the total votes of the directors then in office,
although fewer than a quorum, or by a sole remaining director or by the
shareholders. Each director so chosen shall hold office until his or her
successor is elected and qualified or until his or her earlier death,
resignation or removal. In the event that one or more directors resigns from the
Board, effective at a future date, directors having a majority of the total
votes of directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each director
so chosen shall hold office until his or her successor is elected and qualified
or until his or her earlier death, resignation or removal.
3.6. Compensation of Directors
The Board of Directors shall have the authority to fix the compensation of
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
3.7. Committees of Directors
The Board of Directors may, by resolution passed by the affirmative vote
of directors having a majority of the total votes of the total number of
directors constituting the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. If a member of a committee shall be
absent from any meeting, or disqualified from voting thereat, the remaining
member or members present and not disqualified from voting, whether or not such
member or members constitute a quorum; may, by unanimous vote, appoint another
member of the Board of Directors to act at the meeting in the place of such
absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors or the Bylaws, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to any matter
prohibited by such committee pursuant to Section 7-108-206 of the Colorado
Business Corporation Act. The provisions of Section 4 regarding meetings
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of the Board of Directors and its deliberations shall apply to all committees of
the Board of Directors.
4. MEETINGS OF THE BOARD OF DIRECTORS
4.1. Regular Meetings
Regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be determined by the
Board of Directors. A meeting of the Board of Directors for the election of
officers and the transaction of such other business as may come before it may be
held without notice immediately following the annual meeting of shareholders.
4.2. Special Meetings
Special meetings of the Board may be called by the Chairman of the Board
or the President on two days notice to each director, either personally or by
telephone, express delivery service (so that the scheduled delivery date of the
notice is at least two days in advance of the meeting), telegram or facsimile
transmission, or on five days' notice by mail (effective upon deposit of such
notice in the mail). The notice need not describe the purpose of the special
meeting but shall indicate the date, time and place of the special meeting.
4.3. Place of Meetings
The Board of Directors may hold their meetings and have an office or
offices inside or outside of the State of Colorado. Regular meetings shall be
held at the place established from time to time for regular meetings. Special
meetings shall be held at the place set forth in the notice of the meeting or,
if the special meeting is held in accordance with a waiver of notice of the
meeting, at the place set forth in the waiver of notice.
4.4. Notice of Meetings
Regular meetings of the Board of Directors may be held without further
notice at such time and at such place as shall from time to time be determined
by the Board of Directors. A meeting of the Board of Directors for the election
of officers and the transaction of such other business as may come before it may
be held without notice immediately following the annual meeting of shareholders.
The Corporation shall, however, give at least two days prior notice of the date,
time, and place of a special meeting of the Board of Directors.
4.5. Quorum
At all meetings of the Board of Directors, a quorum of the Board of
Directors consists of the presence of directors having at least a majority of
the total votes of the total number of directors constituting the entire Board
of Directors.
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4.6 Required Vote
The affirmative vote of directors having a majority of the total votes of
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may he otherwise specifically provided by
statute, the Articles of Incorporation or these Bylaws.
4.7, Participation by Conference Telephone
Members of the Board of Directors may participate in a meeting of the
Board of Directors by any communication by means of which all participating
directors can hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
4.8. Adjournments
Whether or not a quorum is present to conduct a meeting, any meeting of
the Board of Directors (including an adjourned meeting) may be adjourned by a
majority of the directors present, to reconvene at a specific time and place. It
shall not be necessary to give to the directors present at the adjourned meeting
notice of the reconvened meeting or of the business to be transacted, other than
by announcement at the meeting that was adjourned; provided, however, notice of
such reconvened meeting, stating the date, time, and place of the reconvened
meeting, shall be given to the directors not present at the adjourned meeting in
accordance with the requirements of Section 4.4 hereof.
4.9. Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board
of Directors may be taken without a meeting if the action is taken by all
members of the Board of Directors. The action must be evidenced by one or more
written consents describing the action taken, signed by each director, and
delivered to the Corporation for filing with the minutes of proceedings of the
Board of Directors of the Corporation.
5. MANNER OF NOTICE TO AND WAIVER OF NOTICE BY SHAREHOLDERS AND DIRECTORS
5.1 Manner of Notice
If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the shareholder at such shareholder's address, or
to the director at the director's address, as it appears on the records of the
Corporation. An affidavit of the Secretary or Assistant Secretary or of the
transfer agent of the Corporation that notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
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5.2. Waiver of Notice
(a) Shareholders. Whenever the giving of any notice is required by
statute, the Articles of Incorporation of the Corporation (which shall include
any amendments thereto) or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance of a shareholder at a meeting
shall constitute a waiver of notice (a) of such meeting, except when the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter at the beginning of the meeting.
(b) Board of Directors. A director may waive any notice required by
statute, the Articles of Incorporation or these Bylaws before or after the date
and time stated in the notice. Except as set forth below, the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for filing with the minutes of proceedings of the Board of Directors
of the Corporation. Notwithstanding the foregoing, a director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
6. OFFICERS
6.1. Number and Duties
The officers of the Corporation will consist of a President, a Treasurer
and a Secretary. The Board of Directors may elect or appoint, or provide for the
appointment of, such other officers (including a Chairman of the Board, one or
more Vice Chairmen, one or more Vice Presidents in such gradation as the Board
of Directors may determine, one or more Assistant Secretaries and one or more
Assistant Treasurers) or agents as may from time to time appear necessary or
advisable in the conduct of the business and affairs of the Corporation. Each
such officer shall exercise such powers and perform such duties as shall be set
forth below and such other powers and duties as from time to time may be
specified by the Board of Directors or by any officer(s) authorized by the Board
of Directors to prescribe the duties of such other officers. Any number of
offices may be held by the same person. Each of the Chairman of the Board (if
any), the President, the Treasurer, and/or any Vice President may execute bonds,
mortgages, notes, contracts and other documents on behalf of the Corporation,
except as otherwise required by law and except where the execution thereof shall
be expressly delegated by the Board of Directors to some other officer or agent
of the Corporation.
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6.2. Chairman of the Board
The Chairman of the Board, if any, shall (when present) preside at all
meetings of the Board of Directors and shareholders and shall ensure that all
orders and resolutions of the Board of Directors are carried into effect. The
Chairman of the Board, if any, shall in general perform all duties incident to
such office, including those duties customarily performed by persons holding
such office, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors.
6.3. President
The President shall have overall responsibility and authority for
management of the business, affairs and operations of the Corporation (subject
to the authority of the Board of Directors), and, in general, shall perform all
duties incident to the office of a president and chief executive officer of a
corporation, including those duties customarily performed by persons holding
such offices, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors.
6.4. Vice President
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, 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. The Vice President
or Vice Presidents, in general, shall perform such other duties as are incident
to the office of a vice president of a corporation, including those duties
customarily performed by persons occupying such office, and shall perform such
other duties as, from time to time, may be assigned to him or her or them by the
Board of Directors or the President. The Board of Directors may designate one or
more Vice Presidents as Executive Vice Presidents, Senior Vice Presidents or
Assistant Vice Presidents.
6.5. Secretary
The Secretary, or an Assistant Secretary, shall attend all meetings of the
Board of Directors and all meetings of the shareholders, and shall record all
the proceedings of the meetings of the shareholders and of the Board of
Directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees; when required. The Secretary shall have custody of
the corporate seal of the Corporation, and the Secretary, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by such officer's signature. The Secretary or an
Assistant Secretary may also attest all instruments signed by the President, the
Treasurer or any Vice President. The Secretary, or an Assistant Secretary, shall
give, or cause to be given, notice of all meetings of the
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shareholders and special meetings of the Board of Directors, and, in general,
shall perform all duties as are incident to the office of a secretary of a
corporation, including those duties customarily performed by persons occupying
such office, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors, the President, the Treasurer
or any Vice President.
6.6. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act or when requested by the Chairman of the Board, the President,
the Treasurer or any Vice President, perform the duties and exercise the powers
of the Secretary, and, in general, shall perform all duties as are incident to
the office of an assistant secretary of a corporation, including those duties
customarily performed by persons holding such office, and shall perform such
other duties as, from time to time, may be assigned to him or her or them by the
Board of Directors, the President, the Treasurer, any Vice President or the
Secretary. An Assistant Secretary may or may not be an officer, as determined by
the Board of Directors.
6.7. Treasurer
The Treasurer shall have responsibility for the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall also render to the President, upon request, and to the Board
of Directors at its regular meetings, or when the Board of Directors so
requires, an account of all financial transactions and of the financial
condition of the Corporation and, in general, shall perform such duties as are
incident to the office of a treasurer of a corporation, including those
customarily performed by persons occupying such office, and shall perform all
other duties as, from time to time, may be assigned to him or her by the Board
of Directors, the President or any Vice President.
6.8. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election) shall, in
the absence of the Treasurer or in the event of the Treasurer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer,
and, in general, shall perform all duties as are incident to the office of an
assistant treasurer of a corporation, including those duties customarily
performed by persons occupying such office, and shall perform such other duties
as, from time to time, may be assigned to him or her or them by the Board of
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Directors, the President, any Vice President or the Treasurer. An Assistant
Treasurer may or may not be an officer, as determined by the Board of Directors.
6.9. Terms of Office
The officers of the Corporation shall hold office until their successors
are chosen and qualify or until their earlier death, resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of directors having a
majority of the total votes of the total number of directors constituting the
entire Board of Directors.
6.10. Compensation
The compensation of officers of the Corporation shall be fixed by the
Board of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the compensation of such other officers.
6.11. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers or
agents by bond or otherwise.
7. CAPITAL STOCK
7.1. Authorization and Issuance of Shares
The directors may, at any time and from time to time, if all of the shares
of capital stock which the corporation is authorized by its Articles of
Incorporation to issue have not been issued, subscribed for, or otherwise
committed to be issued, issue or take subscriptions for additional shares of its
capital stock up to the amount authorized in its Articles of Incorporation.
7.2. Stock Certificates
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution that some or all
of any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates, and upon request every holder
of uncertificated shares shall be entitled to have a certificate (representing
the number of shares registered in certificate form) signed in the name of the
Corporation, by the Chairman of the Board, the President or any Vice President,
and by the Treasurer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Corporation. Any or all the signatures on the certificate may
be facsimile. In case any officer, transfer agent
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or registrar whose signature or facsimile signature appears on a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
7.3. Registered Owner
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise may be required by the Colorado Business Corporation Act.
7.4. Transfer of Shares
The Board of Directors may appoint, or authorize any officer or officers
to appoint, one or more transfer agents and one or more registrars. The Board of
Directors shall make such further rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates of the
Corporation.
7.5. Lost, Stolen or Destroyed Certificates
The Board of Directors, the Chairman of the Board, the President, the
Treasurer or the Secretary may direct a new certificate of stock to be issued in
place of any certificate theretofore issued by the Corporation and alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming that the certificate of stock has been lost, stolen
or destroyed. When authorizing such issuance of a new certificate, the Board of
Directors or any such officer may, as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the Board of Directors or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the Board of Directors or such officer may direct, as indemnity
against any claim that may be made against the Corporation on account of the
certificate alleged to have been lost, stolen or destroyed or on account of the
issuance of such new certificate.
7.6. Record Date
7.6.1. Actions by Shareholders
In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be
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more than 70 days nor less than 10 days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of shareholders
of record entitled to notice of or to vote at a meeting of shareholders shall
apply to any adjournment of the meeting, unless the Board of Directors fixes a
new record date for the adjourned meeting.
In order that the Corporation may determine the shareholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 10 days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining shareholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Colorado Business Corporation Act, shall be at the close of
business on the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation in the
manner prescribed by Section 7-107-104 of the Colorado Business Corporation Act.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by the Colorado Business Corporation Act, the
record date for determining shareholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
7.6.2. Payments
In order that the Corporation may determine the shareholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the shareholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 70 days prior to such
action. If no record date is fixed, the record date for determining shareholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
7.7. Shareholders of Record
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall
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have express or other notice thereof, except as otherwise may be required by the
Colorado Business Corporation Act.
8. INDEMNIFICATION
8.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, shall be
(and shall be deemed to have a contractual right to be) indemnified and held
harmless by the Corporation to the fullest extent authorized by, and subject to
the conditions and (except as provided herein) procedures set forth in the
Colorado Business Corporation Act, as the same exists or may hereafter be
amended (but any such amendment shall not be deemed to limit or prohibit the
rights of indemnification hereunder for past acts or omissions of any such
person insofar as such amendment limits or prohibits the indemnification rights
that said law permitted the Corporation to provide prior to such amendment),
against all expenses, liabilities and losses (including attorneys' fees,
judgments, fines, ERISA taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith; provided however, that the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person (except for a suit or action pursuant to Section 8.2
hereof) only if sue proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. Persons who are not directors or officers of the
Corporation may be similarly indemnified to the extent authorized at any time by
the Board of Directors of the Corporation. The indemnification conferred in this
Section 8.1 also shall include the right to be paid by the Corporation the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the Colorado Business Corporation
Act requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this Section 8.1 or otherwise; and provided further, that,
such expenses incurred by persons who are not directors or officers of the
Corporation may be so paid in advance upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
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8.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 8.1 is not paid in full by the Corporation within
60 days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring an action against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such
action. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has not met
the standards of conduct which make it permissible under the Colorado Business
Corporation Act for the Corporation to indemnify the claimant for the amount
claimed or is otherwise not entitled to indemnification under Section 8.1 but
the burden of proving such defense shall be on the Corporation. The failure of
the Corporation (in the manner provided under the Colorado Business Corporation
Act) to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Colorado Business
Corporation Act shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless
otherwise specified in an agreement with the claimant, an actual determination
by the Corporation (in the manner provided under the Colorado Business
Corporation Act) after the commencement of such action that the claimant has not
met such applicable standard of conduct shall not be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
8.3. Non-exclusivity
The rights to indemnification and advance payment of expenses provided by
Section 8.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
8.4. Insurance
The Corporation shall have power to purchase and maintain insurance on
behalf person who is or was a director, officer, employee or agent of the
Corporation, or was serving at the request of the Corporation as a director,
officer, employee, partner (limited or general) or agent of another corporation
or of a partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, against
any liability asserted against such person or incurred by such person in any
such capacity, or arising out of such person's status as such, and related
expenses whether or not Corporation would have the power to indemnify such
person against such liability under the provisions of the Colorado Business
Corporation Act.
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8.5. Survival of Indemnification
The indemnification, advance payment of expenses and other rights and
provisions provided by, or granted pursuant to, Sections 8.1 through Section 8.5
hereof shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee, partner or agent
and shall inure to the benefit of the personal representatives, heirs, executors
and administrators of such person. In addition, all of the indemnification,
advance payment of expenses and other rights and provisions set forth in
Sections 8.1 through Section 8.5 hereof shall be binding upon any successor (by
merger or otherwise) to the Corporation.
9. GENERAL PROVISIONS
9.1. Inspection of Books and Records
Any shareholder, in person or by attorney or other agent, shall have the
right during usual business hours to inspect and copy the Corporation's Articles
of Incorporation, Bylaws, minutes of shareholders meetings and records of
actions taken by shareholders without a meeting, all written communications
within the past three years to shareholders as a group, a list of names and
business addresses of the Corporation's then current officers and directors and
all financial statements for the past three years to which the Corporation's
shareholders are entitled under the Colorado Business Corporation Act. In
addition, shareholders who have been either a shareholder of record for at least
three (3) months immediately preceding the demand or a holder of record of at
least five percent (5%) of the outstanding shares shall be entitled to inspect
and copy, for any proper purpose and during usual business hours, excerpts from
minutes of board of director or committee minutes and records of actions taken
without a meeting, waivers of notices of board and shareholder meetings,
accounting records and a list of the names, addresses and holdings of the
Corporation's shareholders. A proper purpose shall mean a purpose reasonably
related to such person's interest as a shareholder.
9.2. Dividends
The Board of Directors may declare dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation and the
laws of the State of Colorado.
9.3. Reserves
The directors of the Corporation may set apart, out of the funds of the
Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
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9.4. Execution of Instruments
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
9.5. Fiscal Year
The fiscal year of the Corporation shall be the year ending on the 52nd or
53rd Saturday closest to the end of January, but may be changed at any time by
resolution of the Board of Directors.
9.6. Corporate Seal
The corporate seal shall be in such form as the Board of Directors shall
approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
9.7. Pronouns
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the person
or entity may require.
9.8. Amendments
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the shareholders or the Board of Directors except to the extent the
shareholders in adopting or amending a particular bylaw provide that it may not
be amended or repealed by the Board of Directors.
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The foregoing Amended and Restated Bylaws were adopted by the Board of
Directors and the sole stockholder of the Corporation on December 30, 2006.
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