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EXHIBIT 3.6
BYLAWS
OF
SPI HOLDINGS, INC.
ARTICLE I
Offices and Agents
1. Principal Office. The principal office of the Corporation may
be located within or without the State of Colorado, as designated by the most
recent filing with the Secretary of State of the State of Colorado. The
Corporation may have other offices and places of business at such places within
or without the State of Colorado as shall be determined by the directors.
2. Registered Office. The registered office of the Corporation
required by the Colorado Business Corporation Act must be continually maintained
in the State of Colorado, and it may be, but need not be, identical with the
principal office, if located in the State of Colorado. The address of the
registered office of the Corporation may be changed from time to time as
provided by the Colorado Business Corporation Act.
3. Registered Agent. The Corporation shall maintain a registered
agent in the State of Colorado as required by the Colorado Business Corporation
Act. Such registered agent may be changed from time to time as provided by the
Colorado Business Corporation Act.
ARTICLE II
Shareholders' Meetings
1. Annual Meetings. The annual meeting of the shareholders of the
Corporation shall be held at a date and time fixed by resolution of the board of
directors or by the president in the absence of action by the board of
directors. The annual meeting of the shareholders shall be held for the purpose
of electing directors and transacting such other corporate business as may come
before the meeting. If the election of directors is not held as provided herein
at any annual meeting of the shareholders, or at any adjournment thereof, the
board of directors shall cause the election to be held at a special meeting of
the shareholders as soon thereafter as it may conveniently be held.
Notice of an annual meeting need not include a description of the
purpose or purposes of the meeting except when the purpose of the meeting is to
consider (i) an amendment to the Articles of Incorporation of the Corporation,
(ii) a merger or share exchange in which the Corporation is a party and, with
respect to a share exchange, in which the Corporation's shares will
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be acquired, (iii) the sale, lease, exchange or other disposition, other than in
the usual and regular course of business, of all or substantially all of the
property of the Corporation or of another entity which the Corporation controls,
in each case with or without goodwill, (iv) the dissolution of the Corporation
or (v) any other purpose for which a statement of purpose is required by the
Colorado Business Corporation Act.
2. Special Meetings. Unless otherwise prescribed by the Colorado
Business Corporation Act, special meetings of the shareholders of the
Corporation may be called at any time by the chairman of the board of directors,
by the president, by resolution of the board of directors or upon receipt of one
or more written demands for a meeting, stating the purpose or purposes for which
it is to be held, signed and dated by the holders of at least ten percent (10%)
of all votes entitled to be cast on any issue proposed to be considered at the
meeting. Notice of a special meeting shall include a description of the purpose
or purposes for which the meeting is called.
3. Place of Meeting. The annual meeting of the shareholders of
the Corporation may be held at any place, either within or without the State of
Colorado, as may be designated by the board of directors. Except as limited by
the following sentence, the person or persons calling any special meeting of the
shareholders may designate any place, within or without the State of Colorado,
as the place for the meeting. If no designation is made or if a special meeting
shall be called other than by the board of directors, the chairman of the board
of directors or the president, the place of meeting shall be the principal
office of the Corporation. A waiver of notice signed by all shareholders
entitled to vote at a meeting may designate any place as the place for holding
such meeting.
4. Notice of Meeting. Written notice stating the date, time and
place of the meeting shall be given no f ewer than ten (10) and no more than
sixty (60) days before the date of the meeting. Notice shall be given personally
or by mail, private carrier, telegraph, teletype, electronically transmitted
facsimile or other form of wire or wireless communication by or at the direction
of the president, the secretary, or the officer or other person calling the
meeting to each shareholder of record entitled to vote at such meeting. If
mailed and if in a comprehensible form, such notice shall be deemed to be given
and effective when deposited in the United States mail, addressed to the
shareholder at his or her address as it appears in the Corporation's current
record of shareholders, with postage prepaid. If notice is given other than by
mail, and provided that the notice is in comprehensible form, the notice is
given and effective on the date received by the shareholder. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by such
shareholder.
When a meeting is adjourned to a different date, time or place,
notice need not be given of the new date, time or place if the new date, time or
place is announced at the meeting before adjournment. At the adjourned meeting,
the Corporation may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than 120 days, or if a new
record date is fixed for the adjourned meeting, a new notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting as of the new record date.
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5. Waiver of Notice. A shareholder may waive any notice of a
meeting either bef ore or after the time and date of the meeting. The waiver
shall be in writing, be signed by the shareholder entitled to the notice and be
delivered to the corporation for inclusion in the minutes or filing with the
corporate records, but such delivery and filing shall not be conditions for
effectiveness.
A shareholder's attendance at a meeting waives objection to (i)
lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting because of lack of
notice or defective notice, and (ii) 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 when it is
presented.
6. Fixing of Record. Date. In order to determine shareholders
entitled (i) to be given notice of a shareholders meeting, (ii) to vote, or
(iii) to take any other action, the board of directors may fix a future date as
the record date, such date, in any case, shall not be more than seventy (70)
days and not less than ten (10) days prior to the date on which the particular
action requiring such determination of shareholders is to be taken. If no record
date is fixed, the record date shall be the date on which notice of the meeting
is mailed or the date on which a resolution of the board of directors providing
for a distribution is adopted, as the case may be. When a determination of
shareholders entitled to vote at any meeting of shareholders is made as provided
in this Section 6, such determination shall-apply to any adjournment thereof.
Notwithstanding the foregoing, the record date for determining
the shareholders entitled to take action without a meeting or entitled to be
given notice of action so taken shall be the date a writing upon which the
action is taken is first received by the Corporation. The record date for
determining shareholders entitled to demand a special meeting shall be the date
of the earliest of the demands pursuant to which the meeting is called.
7. Voting List. Af ter fixing a record date f or a shareholders'
meeting, the Corporation shall prepare a list of names of all its shareholders
who are entitled to be given notice of the meeting. The list shall be arranged
by voting groups and within each voting group by class or series, and shall show
the address of, and the number of shares of each class or series that are held
by each shareholder.
The list of shareholders shall be available for inspection by any
shareholder, beginning the earlier of ten (10) days before the meeting for which
the list was prepared or two (2) business days after notice of the meeting is
given and continuing through the meeting, and any adjournment thereof, at the
Corporation's principal office or at a place identified in the notice of the
meeting in the city where the meeting will be held.
A shareholder or an agent or attorney of the shareholder may,
upon written demand, inspect and copy the list during regular business hours and
during the period it is available for inspection, provided (i) the shareholder
has been a shareholder for at least three (3) months immediately preceding the
demand or holds at least five percent (5%) of all outstanding shares of any
class of shares as of the date of the demand, (ii) the demand is made in good
faith and for a
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purpose reasonably related to the demanding shareholder's interest as a
shareholder, (iii) the shareholder describes with reasonable particularity the
purpose and records the shareholder desires to inspect, (iv) the records are
directly connected with the described purpose, and (v) the shareholder pays a
reasonable charge covering the costs of labor and material for such copies, not
to exceed the estimated cost of production and reproduction.
8. Proxies. At all meetings of shareholders, a shareholder may
vote by proxy by signing an appointment form either personally or by his or her
duly authorized attorney-in-fact. A shareholder may also appoint a proxy by
transmitting or authorizing the transmission of a telegram, teletype, or other
electronic transmission providing a written statement of the appointment to the
proxy, to a proxy solicitor, proxy support service organization or other person
duly authorized by the proxy to receive appointments as agent for the proxy, or
to the Corporation. The transmitted appointment shall set forth or be
transmitted with written evidence from which it can be determined that the
shareholder transmitted or authorized the transmission of the appointment. The
proxy appointment form shall be filed with the secretary of the Corporation by
or at the time of the meeting. The appointment of a proxy is effective when
received by the Corporation and is valid for eleven (11) months unless a
different period is expressly provided in the appointment form.
Any complete copy F including an electronically transmitted
facsimile, of an appointment of a proxy may be substituted for or used in lieu
of the original appointment f or any purpose for which the original appointment
could be used.
Revocation of a proxy does not affect the right of the
Corporation to accept the proxy's appointment unless (i) the Corporation had
notice that the appointment was coupled with an interest and notice that the
interest is extinguished is received by the secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his or her authority
under the appointment, or (ii) other notice of the revocation of the appointment
is received by the secretary or other officer or agent authorized to tabulate
votes before the proxy exercises his or her authority under the appointment.
Other notice of revocation may, in the discretion of the Corporation, be deemed
to include the appearance at a shareholders' meeting of the shareholder who
granted the proxy appointment and his or her voting in person on any matter
subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy
does not affect the right of the Corporation to accept the proxy's authority
unless notice of the death or incapacity is received by the secretary or other
officer or agent authorized to tabulate votes before the proxy exercised his or
her authority under the appointment.
The Corporation shall not be required to recognize an appointment
made irrevocable if it has received a writing revoking the appointment signed by
the shareholder either personally or by the shareholder's attorney-in-fact,
notwithstanding that the revocation may be a breach of an obligation of the
shareholder to another person not to revoke the appointment.
A transferee for value of shares subject to an irrevocable
appointment may revoke the appointment if the transferee did not know of its
existence when he or she acquired the shares and the irrevocable appointment was
not noted on the certificate representing the shares.
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Subject to the provisions of Article II, Section 10 below or any
express limitation on the proxy's authority appearing on the appointment form,
the Corporation is entitled to accept the proxy's vote or other action as that
of the shareholder making the appointment.
9. Voting Rights. Each outstanding share, regardless of class, is
entitled to one vote and each fractional share is entitled to a corresponding
fractional vote, on each matter voted on at a shareholders' meeting 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. Only shares are entitled to
vote. Voting on any question or in any election may be by voice vote unless the
presiding officer shall order, or any shareholder shall demand, that voting be
by ballot.
Cumulative voting in the election of directors shall not be
permitted.
10. Corporation's Acceptance of Votes. If the name signed on a
vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the Corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment, or
proxy appointment revocation and to give it effect as the act of the
shareholder. If the name signed on a vote, consent, waiver, proxy appointment,
or proxy appointment revocation does not correspond to the name of a
shareholder, the Corporation, if acting in good faith, is nevertheless entitled
to accept the vote, consent, waiver, proxy appointment, or proxy appointment
revocation and to give it effect as the act of the shareholder if:
(a) The shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity;
(b) The name signed purports to be that of an administrator,
executor, guardian, or conservator representing the shareholder and, if the
Corporation requests, evidence of fiduciary status acceptable to the Corporation
has been presented with respect to the vote, consent, waiver, proxy appointment,
or proxy appointment revocation;
(c) The name signed purports to be that of a receiver or trustee
in bankruptcy of the shareholder and, if the Corporation requests, evidence of
this status acceptable to the Corporation has been presented with respect to the
vote, consent, waiver, proxy appointment, or proxy appointment revocation;
(d) The name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory's authority to sign for
the shareholder has been presented with respect to the vote, consent, waiver,
proxy appointment, or proxy appointment revocation;
(e) Two or more persons are the shareholder as cotenants or
fiduciaries and the name signed purports to be the name of at least one of the
cotenants or fiduciaries and the person signing appears to be acting on behalf
of all the cotenants or fiduciaries; or
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(f) The acceptance of the vote, consent, waiver, proxy
appointment, or proxy appointment revocation is otherwise proper under rules
established by the Corporation that are not inconsistent with the provisions of
this Section 10.
The Corporation is entitled to reject a vote, consent, waiver,
proxy appointment, or proxy appointment revocation if the secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or about
the signatory's authority to sign for the shareholder.
The Corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, proxy appointment, or proxy appointment revocation in
good faith and in accordance with the standards of this Section 10 are not
liable in damages for the consequences of the acceptance or rejection.
11. Quorum and Voting Requirements. A majority of the votes
entitled to be cast on a matter by a voting group shall constitute a quorum of
that voting group for action on the matter unless a lesser number is authorized
by the Articles of Incorporation. Once a share is represented for any purpose at
a meeting, including the purpose of determining that a quorum exists, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting, unless otherwise provided in the Articles of
Incorporation or unless a new record date is or shall be set for that adjourned
meeting.
If a quorum exists, action on a matter other than the election of
directors by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action, unless the vote of a greater number or voting by classes is required
by law or the Articles of Incorporation.
12. Adjournments. If less than a quorum of shares entitled to
vote is represented at any meeting of the shareholders, a majority of the shares
so represented may adjourn the meeting from time to time without further notice,
for a period not to exceed 120 days at any one adjournment. If a quorum is
present at such adjourned meeting, any business may be transacted which might
have been transacted at the meeting as originally noticed. Any meeting of the
shareholders may adjourn from time to time until its business is completed.
13. Action by Shareholders Without Meeting. Any action required
or permitted to be taken at a shareholders' meeting may be taken without a
meeting if all of the shareholders entitled to vote on the action consent to
such action in writing. Action taken under this Section 13 shall be ef f ective
as of the date the Corporation receives writings describing and consenting to
the action signed by all of the shareholders entitled to vote with respect to
the action, unless all of the writings specify another date as the effective
date of the action, in which case such other date shall be the effective date of
the action. Any such writings may be received by the Corporation by
electronically transmitted facsimile or other form of wire or wireless
communication providing the Corporation with a complete copy thereof, including
a copy of the signatures thereto. Action taken under this Section 13 has the
same effect as action taken at a meeting of shareholders and may be described as
such in any document.
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Any shareholder who has signed a writing describing and
consenting to action taken pursuant to this Section 13 may revoke such consent
by a writing signed and dated by the shareholder describing the action and
stating that the shareholder's prior consent thereto is revoked, if such writing
is received by the Corporation prior to the date the last writing necessary to
effect the action is received by the Corporation.
14. Meetings by Telecommunication. Any or all of the shareholders
may participate in an annual or special shareholders' meeting by, or the meeting
may be conducted through the use of, any means of communication by which all
persons participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
Board of Directors
1. General Powers. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the board of directors, except as otherwise
provided in the Colorado Business Corporation Act or the Articles of
Incorporation.
2. Number, Qualifications and Term of Office. The number of
directors of the Corporation shall be fixed from time to time by resolution of
the board of directors, within a range of no less than one (1) or more than nine
(9). A director shall be a natural person who is eighteen years or older. A
director need not be a resident of the State of Colorado or a shareholder of the
Corporation.
Directors shall be elected at each annual meeting of shareholders
and shall hold such office until the next annual meeting of shareholders and
until his or her successor is elected and qualifies. A decrease in the number of
directors does not shorten an incumbent director's term.
3. Resignation, Vacancies. Any director may resign at any time by
giving written notice to the Corporation. A resignation of a director is
effective when the notice is received by the Corporation unless the notice
specifies a later effective date. Unless otherwise specified in the notice, the
acceptance of such resignation by the Corporation shall not be necessary to make
it effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders or by the affirmative vote of
a majority of directors then in office, even if less than a quorum is remaining
in of f ice. If elected by the directors, the director shall hold office until
the next annual shareholders' meeting at which directors are elected. If elected
by the shareholders, the director shall hold office for the unexpired term of
his or her predecessor in office, except that, if the director's predecessor was
elected by the directors to fill a vacancy, the director elected by the
shareholders shall hold office for the unexpired term of the last predecessor
elected by the shareholders.
4. Removal of Directors bv Shareholders. Unless otherwise
provided in the Articles of Incorporation, the shareholders may remove one or
more directors with or without cause. A director may be removed by the
shareholders only at a meeting called for the purpose of removing
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the director and the meeting notice states that the purpose, or one of the
purposes, of the meeting is removal of the director.
5. Removal of Directors by Judicial Proceeding. A director may be
removed by the District Court of the Colorado county where the principal office
is located or, if the corporation has no principal office in the State of
Colorado, by the District court of the Colorado county in which its registered
office is located or, if the Corporation has no registered office, by the
District Court for the City and County of Denver, upon a finding by the District
Court that the director engaged in fraudulent or dishonest conduct or gross
abuse of authority or discretion with respect to the Corporation and that
removal is in the best interests of the Corporation. The judicial proceeding may
be commenced either by the Corporation or by shareholders holding at least ten
percent (10%) of the outstanding shares of any class.
6. Compensation. By resolution of the board of directors, any
director may be paid any one or more of the following: his or her expenses, if
any, of attendance at meetings; a fixed sum for attendance at each meeting; a
stated salary as director; or such other compensation as the Corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Meetings of the Board of Directors
1. Place of Meetings. The regular or special meetings of the
board of directors shall be held at the principal office of the Corporation
unless otherwise designated.
2. Regular Meetings. The board of directors shall meet each year
after the annual meeting of the shareholders for the purpose of appointing
officers and transacting such other business as may come before the meeting. The
board of directors may provide, by resolution, for the holding of additional
regular meetings without other notice than such resolution.
3. Special Meetings. Special meetings of the board of directors
may be called at any time by the chairman of the board of directors, by the
president or by a majority of the members of the board of directors.
4. Notice of Meetings. Notice of the regular meetings of the
board of directors need not be given. Except as otherwise provided by these
Bylaws or the laws of the State of Colorado, written notice of each special
meeting of the board of directors setting forth the time and the place of the
meeting shall be given to each director not less than two (2) days prior to the
date and time fixed for the meeting. Notice of any special meeting may be either
personally delivered or mailed to each director at his or her business address,
or by notice transmitted by telegraph, telex, electronically transmitted
facsimile or other form of wire or wireless communication. If mailed, such
notice shall be deemed to be given and to be effective on the earlier of (i)
three (3) days after such notice is deposited in the United States mail properly
addressed, with postage prepaid, or (ii) the date shown on the return receipt if
mailed by registered or certified mail return receipt
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requested. If notice is given by telex, electronically transmitted facsimile or
other similar form of wire or wireless communication, such notice shall be
deemed to be given and to be effective when sent with a confirmation of receipt,
and with respect to a telegram, such notice shall be deemed to be given and to
be effective when the telegram is delivered to the telegraph company. If a
director has designated in writing one or more reasonable addresses or facsimile
numbers for delivery of notice, notice sent by mail, telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
5. Waiver of Notice. A director may, in writing, waive notice
of any special meeting of the board of directors either before, at, or after the
meeting. Such waiver shall be delivered to the corporation for filing with the
corporate records. Attendance or participation of a director at a meeting waives
any required notice of that meeting unless at the beginning of the meeting or
promptly upon the director's arrival, the director objects to holding the
meeting or transacting business at the meeting because of lack of notice or
defective notice and does not thereafter vote for or assent to action taken at
the meeting.
6. Quorum, Manner of Acting. At meetings of the board of
directors a majority of the number of directors fixed by resolution of the board
of directors shall constitute a quorum for the transaction of business. If the
number of directors is not fixed, then a majority of the number in office
immediately before the meeting begins shall constitute a quorum. If a quorum is
present when a vote is taken, the affirmative vote of a majority of directors
present is the act of the board of directors unless the vote of a greater number
is required by these Bylaws, the Articles of Incorporation or the Colorado
Business Corporation Act.
7. Presumption of Assent. A director who is present at a
meeting of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless:
(a) the director objects at the beginning of such meeting or
promptly upon his or her arrival, to the holding of the meeting or the
transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting;
(b) the director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in the minutes
of such meeting; or
(c) the director causes written notice of his or her dissent or
abstention as to any specific action to be received by the presiding officer of
such meeting before its adjournment or by the Corporation promptly after
adjournment of such meeting.
The right of dissent or abstention as to a specific action
taken in a meeting of the board of directors is not available to a director who
votes in favor of the action taken.
8. Committees. The board of directors may, by a resolution
adopted by a
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majority of all of the directors in office when the action is taken, designate
one of more of its members to constitute an executive committee, and one or more
other committees. To the extent provided in the resolution, each committee shall
have and may exercise all of the authority of the board of directors, except
that no such committee shall have the authority to: (i) authorize distributions;
(ii) approve or propose to shareholders action 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 the Articles of
Incorporation; (v) amend or repeal these Bylaws or adopt new Bylaws; (vi)
approve a plan of merger not requiring shareholder approval; (vii) authorize or
approve the reacquisition of shares except in accordance with a formula or
method prescribed by the board of directors; or (viii) authorize or approve the
issuance or sale of shares, or a contract for the sale of shares, or determine
the designation, relative rights, preferences and limitations of a class or
series of shares; except that the board of directors, may authorize a committee
or an officer to do so within limits specifically prescribed by the board of
directors.
The creation of, delegation of authority to, or action by a
committee does not alone constitute compliance by a director with the standards
of conduct set forth in Article V.
9. Informal Action by Directors. Any action required or
permitted be taken at a board of directors meeting may be taken without a
meeting if all members of the board of directors consent to such action in
writing. Action taken under this Section 9 is effective at the time the last
director signs a writing describing the action taken unless the directors
establish a different effective date, and unless, bef ore such time, a director
has revoked his or her consent by a writing signed by the director and received
by the president or secretary. Action taken pursuant to this Section 9 has the
same effect as action taken at a meeting of the directors and may be described
as such in any document.
10. Telephonic Meetings. Members of the board of directors may
participate in a regular or special meeting by, or conduct the meeting through,
the use of any means of communication by which all directors participating may
hear each other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
ARTICLE V
Standards of Conduct
Each director shall perform his or her duties as a director,
including his or her duties as a member of any committee, and each officer with
discretionary authority shall discharge his or her duties under that authority
(i) in good faith, (ii) with the care an ordinarily prudent person in a like
position would exercise under similar circumstances, and (iii) in a manner he or
she reasonably believes to be in the best interests of the Corporation.
In discharging his or her duties, a director or officer is
entitled to rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or presented by (i)
one or more officers or employees of the Corporation whom the director or
officer reasonably believes to be reliable and competent in the matters
presented, (ii)
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legal counsel, a public accountant, or other person as to matters which the
director or officer reasonably believes to be within such person's professional
or expert competence, or (iii) in the case of a director, a committee of the
board of directors of which the director is not a member if the director
reasonably believes the committee merits confidence.
A director or officer is not acting in good faith if he or she
has knowledge concerning the matter in question that makes reliance otherwise
permitted under this Article V unwarranted.
A director or officer is not liable as such to the Corporation
or its shareholders for any action he or she takes or omits to take as a
director or officer, as the case may be, if, in connection with such action or
omission, he or she performed the duties of the position in compliance with
this Article V.
ARTICLE VI
Officers and Agents
1. General. The officers of the Corporation shall consist of a
chairman of the board of directors, a president, a secretary and a treasurer.
Each officer shall be a natural years of age or older. The board of directors or
officers authorized by the officers, assistant person eighteen or an officer or
officers authorized by the board of directors may appoint such other officers,
assistant officers, committees and agents, including one or more vice
presidents, assistant secretaries and assistant treasurers, as they may consider
necessary. The board of directors or the officer or officers authorized by the
board of directors shall from time to time determine the procedure for the
appointment of officers, their term of office, their authority and duties and
their compensation. One person may hold more than one office. In all cases where
the duties of any officer, agent, or employee are not prescribed by these Bylaws
or by the board of directors, such officer, agent or employee shall follow the
orders and instructions of the president of the Corporation.
Any officer shall have the power to execute and deliver on
behalf of and in the name of the Corporation any instrument requiring the
signature of an officer of the Corporation, except as otherwise provided in
these Bylaws or where the execution and delivery thereof shall be expressly
delegated by the board of directors to some other officer or agent of the
Corporation.
2. Appointment and Term of Office. The officers of the
Corporation shall be appointed by the board of directors at each annual meeting
of the board of directors held after each annual meeting of the shareholders. If
the appointment of officers is not made at such meeting or if an officer or
officers are to be appointed by another officer or officers of the Corporation,
such appointments shall be made as soon thereafter as practicable.
3. Vacancies. A vacancy in any office, however occurring, may
be filled by the board of directors, or by the officer or officers authorized by
the board of directors, for the unexpired portion of the officer's term.
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4. Resignation. An officer may resign at any time by giving
written notice of resignation to the Corporation. A resignation of an officer is
effective when the notice is received by the Corporation unless the notice
specifies a later effective date. If a resignation is made effective at a later
date, the board of directors may permit the officer to remain in of f ice until
the effective date and may f ill the pending vacancy bef ore the effective date
if the board of directors provides that the successor does not take office until
the effective date, or the board of directors may remove the officer at any time
before the effective date and may fill the resulting vacancy.
5. Removal. Any officer or agent of this Corporation may be
removed with or without cause by the board of directors or an officer or
officers authorized by the board of directors.
6. Contract Rights. Appointment of an officer does not itself
create contract rights. An officer"s removal does not affect the officer's
contract rights, if any, with the Corporation. An officer's resignation does not
affect the Corporation's contract rights, if any, with the officer.
7. Chairman of the Board of Directors. The chairman of the
board of directors shall preside as chairman at meetings of the shareholders and
the board of directors. He or she shall, in addition, have such other duties as
the board of directors may prescribe that he or she perform. At the request of
the president, the chairman of the board of directors may, in the case of the
president's absence or inability to act, temporarily act in his or her place. In
the case of death of the president or in the case of his or her absence or
inability to act without having designated the chairman of the board of
directors to act temporarily in his place, the chairman of the board of
directors shall perform the duties of the president, unless the board of
directors, by resolution, provides otherwise. If the chairman of the board of
directors shall be unable to act in place of the president, the vice presidents
may exercise such powers and perform such duties as provided in Section 9 below.
8. President. Subject to the direction and supervision of the
board of directors, the president shall be the chief executive officer of the.
Corporation and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. In the
event the position of chairman of the board of directors shall not be occupied
or the chairman shall be absent or otherwise unable to act, the president shall
preside at meetings of the shareholders and the board of directors and shall
discharge the duties of the presiding officer. Unless otherwise directed by the
board of directors, the president shall attend in person or by substitute
appointed by him or her, or shall execute on behalf of the Corporation written
instruments appointing a proxy or proxies to represent the Corporation at, all
meetings of the shareholders of any other corporation in which the Corporation
holds any stock. On behalf of the Corporation, the president may in person or by
substitute or proxy execute written waivers of notice and consents with respect
to any such meetings. At all such meetings and otherwise, the president, in
person or by substitute or proxy, may vote the stock held by the Corporation,
execute written-consents and other instruments with respect to such stock and
exercise any and all rights and powers incident to the ownership of said stock.
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9. Vice Presidents. Each vice president shall have such powers
and perform such duties as the board of directors may from time to time
prescribe or as the president may from time to time delegate to him or her. At
the request of the president, in the case of the president's absence or
inability to act, any vice president may temporarily act in his or her place. In
the case of the death of the president, or in the case of his or her absence or
inability to act without having designated a vice president or vice presidents
to act temporarily in his or her place, the board of directors, by resolution,
may designate a vice president or vice presidents, to perform the duties of the
president. If no such designation shall be made, the chairman of the board of
directors shall exercise such powers and perform such duties, as provided in
Section 8 of this Article V, but if the Corporation has no chairman of the board
of directors, or if the chairman is unable to act in place of the president, any
of the vice presidents may exercise such powers and perform such duties.
10. Secretary. The secretary shall (i) prepare, or cause to be
prepared, and maintain as permanent records the minutes of the proceedings of
the shareholders and the board of directors or any committee thereof, a record
of all actions taken by the shareholders or board of directors or any committee
thereof without a meeting and a record of all waivers of notice of meetings of
shareholders and of the board of directors or any committee thereof, (ii) see
that all notices are duly given in accordance with the provisions of these
Bylaws and as required by law, (iii) serve as custodian of the records of the
Corporation, (iv) keep at the registered office or principal place of business,
a record containing the names and addresses of all shareholders in a form that
permits preparation of a list of shareholders arranged by voting group and by
class or series of shares within each voting group, that is alphabetical within
each class or series and that shows the address of, and the number of shares of
each class or series held by, each shareholder, unless such a record shall be
kept at the office of the Corporation's transfer agent or registrar, (v)
maintain at the Corporation's principal office the originals or copies of the
Corporation's Articles of Incorporation, Bylaws, minutes of all shareholders'
meeting and records of all action taken by shareholders without meeting, all
written communications to shareholders as a group or to the holders of any class
or series of shares as a group, a list of the names and business addresses of
the current directors and officers, and a copy of the Corporation's most recent
corporate report filed with the Secretary of State, (vi) have general charge of
the stock transfer books of the Corporation, unless the Corporation has a
transfer agent, (vii) authenticate records of the Corporation, and (viii) in
general, perform all duties incident to the office of secretary and such other
duties as f rom time to time may be assigned to him or her 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. The directors and/or
shareholders may, however, respectively designate a person other than the
secretary or assistant secretary to keep the minutes of their respective
meetings.
11. Treasurer. The treasurer shall be the chief financial
officer of the Corporation, shall have care and custody of all corporate funds,
securities, evidences of indebtedness and other personal property of the
Corporation and shall deposit the same in accordance with the instructions of
the board of directors. The treasurer shall receive and give receipts and
acquittances for money paid in on account of the Corporation, and shall pay out
of the Corporation's funds on hand all bills, payrolls and other just debts of
the Corporation of whatever nature upon maturity. Such power given to the
treasurer to deposit and disburse funds shall not, however, preclude any other
officer or employee of the Corporation from also depositing and
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disbursing funds when authorized to do so by the board of directors. The
treasurer shall, if required by the board of directors, give the Corporation a
bond in such amount and with such surety or sureties as may be ordered by the
board of directors for the faithful performance of duties of his or her office.
The treasurer shall have such other powers and perform such other duties as may
be from time to time prescribed by the board of directors or the president. The
assistant treasurers, if any, shall have the same powers and duties, subject to
the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of
the Corporation and shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account as
required by the Colorado Business Corporation Act, prepare and file all local,
state and federal tax returns, prescribe and maintain an adequate system of
internal audit and prepare and furnish the president and the board of directors
statements of account showing the financial position of the Corporation and the
results of its operations.
12. Assistant Secretaries and Assistant Treasurers. The
assistant secretaries and the assistant treasurers (in the order designated by
the board of directors or, lacking such designation, by the president), in the
absence of the secretary or treasurer respectively, as the case may be, shall
perform the duties and exercise the powers of such secretary or treasurer and
shall perform such other duties as the board of directors shall prescribe.
13. Delegation of Duties. Whenever an officer is absent or
whenever, for any reason, the board of directors may deem it desirable, the
board of directors may delegate the powers and duties of an officer to any other
officer or officers or to any director or directors.
14. Bond of Officers. The board of directors may require any
officer to give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for such terms and
conditions as the board of directors may specify, including, without limitation,
for the faithful performance of his or her duties and for the restoration to the
Corporation of all property in his or her possession or under his or her control
belonging to the Corporation.
ARTICLE VII
Share Certificates and the Transfer of Shares
1. Share Certificates. Each share certificate shall state on
its face (i) the name of the Corporation and that it is incorporated under the
laws of the State of Colorado, (ii) the name of the person to whom the
certificate is issued, and (iii) the number and class of shares and the
designation of the series, if any, the certificate represents. Each share
certificate shall be signed, either manually or in facsimile, by the chairman or
vice chairman of the board of directors or by the president or the vice
president and by the treasurer or an assistant treasurer or by the secretary or
an assistant secretary, or such other officers as the board of directors may
designate, by resolution, and may bear such other information as may be deemed
necessary or appropriate. If the person who signed a share certificate either
manually or in facsimile no longer holds office when the certificate is issued,
the certificate is nevertheless valid. If the Corporation is authorized to issue
different classes of shares or different series within a class, the certificate
shall state conspicuously on its
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front or back that the Corporation will furnish the shareholder information
regarding the designations, preferences, limitations and relative rights of each
class and for each series, upon written request and without charge.
2. Issuance of Shares. Except as provided in the Articles of
Incorporation or the Colorado Business Corporation Act, the board of directors
may authorize the issuance of shares for consideration consisting of any
tangible property, intangible property or benefit to the Corporation, including
cash, promissory notes, services performed and other securities of the
Corporation. The board of directors shall determine that the consideration
received or to be received for the shares to be issued is adequate. Such
determination, in the absence of fraud, is conclusive insofar as the adequacy of
such consideration relates to whether the shares are validly issued, fully paid
and non-assessable. The promissory note of a subscriber or an affiliate of a
subscriber for shares shall not constitute consideration for the shares unless
the note is negotiable and is secured by collateral other than the shares,
having a fair market value at least equal to the principal amount of the note.
For the purposes of this Section 2, "promissory note" means a negotiable
instrument on which there is an obligation to pay independent of collateral and
does not include a nonrecourse note. Unless otherwise expressly provided in the
Articles of Incorporation, shares having a par value may be issued for less than
the par value.
3. Lost Certificates. The board of directors may direct a new
certificate to be issued in place of a certificate alleged to have been
destroyed or lost if the owner makes an affidavit or affirmation of that fact
and produces such evidence of loss or destruction as the board of directors may
require. The board of directors, in its discretion, may as a condition precedent
to the issuance of a new certificate require the owner to give the Corporation a
bond as indemnity against any claim that may be made against the Corporation
relating to the certificate allegedly destroyed or lost.
4. Transfer of Shares.
(a) Shares of the Corporation shall only be transferred on the
stock transfer books of the Corporation by the holder of record thereof upon the
surrender to the Corporation of the share certificates duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer and such documentary stamps as may be required by law. In that event,
the surrendered certificates shall be canceled, new certificates issued to the
persons entitled to them, and the transaction recorded on the books of the
Corporation. 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.
(b) The Articles of Incorporation, these Bylaws, an agreement
among shareholders, or an agreement among shareholders and the Corporation may
impose restrictions on the transfer or registration of transfer of shares of the
Corporation. A restriction does not affect shares issued before the restriction
became effective unless the holder of such shares acquired such shares with
knowledge of the restriction, is a party to the agreement containing the
restriction, or voted in favor of the restriction or otherwise consented to the
restriction.
(c) A restriction on the transfer or registration of transfer
of shares is valid and
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enforceable against the holder or a transferee of the holder if the restriction
is authorized by the Colorado Business Corporation Act and its existence is
noted conspicuously on the front or back of the certificate. Unless so noted, a
restriction is not enforceable against a person without knowledge of the
restriction.
5. Registered Shareholders. The Corporation shall be entitled
to treat the registered holder of any shares of the Corporation as the owner
thereof for all purposes, and the Corporation shall not be bound to recognize
any equitable or other claim to, or interest in, such shares or rights deriving
from such shares on the part of any person other than the registered holder,
including, without limitation, any purchaser, assignee or transferee of such
shares or rights deriving from such shares, unless and until such other person
becomes the registered holder of such shares, whether or not the Corporation
shall have either actual or constructive notice of the claimed interest of such
other person.
6. Transfer Agent, Registrars and Paying Agents. The board of
directors may at its discretion appoint one or more transfer agents, registrars
and 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 VIII
Insurance
By action of the board of directors, notwithstanding any
interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such scope and amounts as the board of directors deems
appropriate, on behalf of any person who is or was a director, officer,
employee, fiduciary or agent of the Corporation, or who, while a director,
officer, employee, fiduciary or agent of the Corporation, is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee, fiduciary or agent of any other foreign or domestic corporation or of
any partnership, joint venture, trust, profit or nonprofit unincorporated
association, limited liability company or other enterprise or employee benefit
plan, against any liability asserted against, or incurred by, him or her in that
capacity or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of the Colorado Business Corporation Act. 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 is a company in which the Corporation has an equity interest
or any other interest, through stock ownership or otherwise.
ARTICLE IX
Miscellaneous
1. Fiscal Year. The fiscal year of the corporation shall end
on January 31 of each year. Said fiscal year may be changed from time to time by
the board of directors in its
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discretion.
2. Amendments. The board of directors shall have power to make,
amend and repeal these Bylaws at any regular or special meeting of the board of
directors unless the shareholders expressly provide that the directors may not
amend or repeal such bylaw. The shareholders also shall have the power to make,
amend or repeal these Bylaws at any annual meeting or at any special meeting
called for that purpose.
3. Gender. Whenever required by the context, the singular shall
include the plural, the plural the singular, and one gender shall include all
genders.
4. Invalid Provision. The invalidity or unenforceability of any
particular provision of these Bylaws shall not affect the other provisions
herein, and these Bylaws shall be construed in all respects as if such invalid
or unenforceable provision was omitted.
5. Governing Law. These Bylaws shall be governed by and
construed in accordance with the laws of the State of Colorado.
6. Definitions. Except as otherwise specifically provided in
these Bylaws, all terms used in these Bylaws shall have the definitions ascribed
to them in the Colorado Business Corporation Act.
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