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EPL Technologies, Inc.
Exhibit 3.2
Amended and Restated By-Laws
of the Company, as amended to date
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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
EPL TECHNOLOGIES, INC.
ARTICLE I - OFFICES
1.1 PRINCIPAL OFFICE. The principal offices of the Corporation shall
initially be at 2 International Plaza, Suite 245, Philadelphia, Pennsylvania
19113-1507, but the Corporation may, in the discretion of the board of
directors, maintain offices wherever the business of the Corporation may
require.
1.2 REGISTERED OFFICE AND AGENT. The Corporation shall continuously
maintain in the State of Colorado a registered office and a registered agent
whose business office is identical with the registered office. The initial
registered office and the initial registered agent are specified in the original
Articles of Incorporation for the Corporation. The Corporation may change its
registered office, its registered agent, or both, upon filing a statement as
specified by law in the office of the Secretary of State of Colorado.
ARTICLE II - SHAREHOLDERS
2.1 TIME AND PLACE. Any meeting of the shareholders may be held at
such time and place, within or outside the State of Colorado, as may be fixed by
the board of directors or as shall be specified in the notice or waiver of
notice of the meeting. If the place for a meeting is not fixed by the board of
directors, such meeting shall be held at the Corporation's principal office.
2.2 ANNUAL SHAREHOLDERS' MEETING.
(a) An annual meeting of the shareholders of the Corporation
shall be held in each calendar year during the month of July on such date and at
such time fixed by the board of directors (or such other month, date and time as
the board of directors may fix or as fixed by the president in the absence of
action by the board of directors), for the purposes of electing directors and
for the transaction of such other business as may come before the meeting. If
the election of directors is not held on the day fixed as provided herein for
any annual meeting of shareholders, or 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.
(b) A shareholder may apply to the district court in the
county in Colorado where the Corporation's principal office is located or if the
Corporation has no principal office in Colorado to the district court the county
in which the Corporation's registered office is located to seek an order that a
shareholder meeting be held (i) if an annual meeting was not held on a date
which is within the earlier of six months after the close of the last fiscal
year or fifteen months after the last annual meeting, or (ii) if the shareholder
participated in a proper call of or proper demand for a special meeting, and
notice of the special meeting was not given within thirty days after the date of
the call or the date the last of
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the demands necessary to require calling the meeting was received by the
Corporation pursuant to section 7-107-102(1)(b) of the Colorado Business
Corporation Act, or the special meeting was not held in accordance with the
notice.
2.3 SPECIAL SHAREHOLDERS' MEETING. A special shareholders meeting
for any purpose or purposes, may be called by the board of directors or the
president. The Corporation shall also hold a special shareholders meeting in the
event it receives, in the manner specified in Section 8.3, one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by the holders of shares representing not less than
one-tenth of all of the votes entitled to be cast on any issue to be determined
at the meeting. Special meetings shall be held at the principal office of the
Corporation or at such other place as the board of directors or the president
may determine.
2.4 RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders entitled
to (i) notice of or to vote at any shareholders meeting or at any adjournment of
a shareholders meeting, (ii) demand a special shareholders meeting, (iii) take
any other action or (iv) receive payment of a share dividend or a distribution,
or for any other purpose, the board of directors may fix a future date as the
record date for such determination of shareholders. The record date may be fixed
not more than seventy days before the date of the proposed action.
(b) Unless otherwise specified when the record date is fixed,
the time of day for determination of shareholders shall be as of the
Corporation's close of business on the record date.
(c) A determination of shareholders entitled, to be given
notice of or to vote at a shareholders meeting is effective for any adjournment
of the meeting unless the board of directors fixes a new record date, which the
board shall do if the meeting is adjourned to a date more than one hundred
twenty days after the date fixed for the original meeting.
(d) If no record date is otherwise fixed, the record date for
determining shareholders entitled to be given notice of and to vote at an annual
or special shareholders meeting is the day before the first notice is given to
shareholders.
(e) The record date for determining shareholders entitled to
take action without a meeting pursuant to Section 2.11 is the date a writing
upon which the action is taken is first received by the Corporation.
2.5 VOTING LIST.
(a) After a record date is fixed for a shareholders meeting,
the secretary shall prepare a list of the names of all its shareholders who are
entitled to be given notice of the meeting. The list (i) shall be arranged by
voting groups and within each voting group by class or series of shares, (ii)
shall be alphabetical within each class or series and
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(iii) shall show the address of, and the number of shares of each such class and
series that are held by, each shareholder.
(b) The shareholders' list shall be available for inspection
by any shareholder, beginning the earlier of ten days before the meeting for
which the list was prepared or two 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.
(c) The secretary shall make the shareholders list available
at the meeting, and any shareholder or agent or attorney of a shareholder is
entitled to inspect the list at any time during the meeting or any adjournment
thereof.
2.6 NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders of the
date, time, and place of each annual and special shareholders meeting no fewer
than ten nor more than sixty days before the date of the meeting; except that,
if the articles of incorporation are to be amended to increase the number of
authorized shares, at least thirty days notice shall be given. Except as
otherwise required by the Colorado Business Corporation Act (the "Act"), the
secretary shall be required to give such notice only to shareholders entitled to
vote at the meeting.
(b) Notice of an annual shareholders meeting need not include
a description of the purpose or purposes for which the meeting is called unless
a purpose of the meeting is to consider an amendment to the articles of
incorporation, a restatement of the articles of incorporation, a plan of merger
or share exchange, disposition of substantially all of the property of the
Corporation, consent by the Corporation to the disposition of property by
another entity, or dissolution of the Corporation.
(c) Notice of a special shareholders meeting shall include a
description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders meeting shall be in writing and
shall be given
(i) by deposit in the United States mail, properly
addressed to the shareholder's address shown in the Corporation's current record
of shareholders, first class postage prepaid, and, if so given, shall be
effective when mailed; or
(ii) by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier or by personal delivery to
the shareholder, and, if so given, shall be effective when actually received by
the shareholder.
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(e) If an annual or special shareholders 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; provided, however, that, if a new record date for the
adjourned meeting is fixed pursuant to Section 2.4, notice of the adjourned
meeting shall be given to persons who are shareholders as of the new record
date.
(f) If three successive notices are given by the Corporation,
whether with respect to a shareholders meeting or otherwise, to a shareholder
and are returned as undeliverable, no further notices to such shareholder shall
be necessary until another address for the shareholder is made known to the
Corporation.
2.7 QUORUM. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. A majority of the votes entitled to be cast on the
matter by the voting group shall constitute a quorum of that voting group for
action on the matter. If a quorum does not exist with respect to any voting
group, the president or any shareholder or proxy that is present at the meeting,
whether or not a member of that voting group, may adjourn the meeting to a
different date, time, or place, and (subject to the next sentence) 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. If a new record date for the
adjourned meeting is or must be fixed pursuant to Section 2.4, notice of the
adjourned meeting shall be given pursuant to Section 2.6 to persons who are
shareholders as of the new record date. At any adjourned meeting at which a
quorum exists, any matter may be acted upon that could have been acted upon at
the meeting originally called; provided, however, that, if new notice is given
of the adjourned meeting, then such notice shall state the purpose or purposes
of the adjourned meeting sufficiently to permit action on such matters. 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 a
new record date is or shall be set for that adjourned meeting.
2.8 VOTING ENTITLEMENT OF SHARES. Except as stated in the articles
of incorporation, 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.
2.9 PROXIES, ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the
Corporation until the appointment is received by the Corporation. An appointment
is valid for eleven months unless a different period is expressly provided in
the appointment form.
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(c) The Corporation may accept or reject any appointment of a
proxy, revocation of appointment of a proxy, vote, consent, waiver, or other
writing purportedly signed by or for a shareholder, if such acceptance or
rejection is in accordance with the provisions of Sections 7-107-203 and
7-107-205 of the Colorado Business Corporation Act.
2.10 WAIVER OF NOTICE.
(a) A shareholder may waive any notice required by the Act,
the articles of incorporation or these bylaws, whether before or after the date
or time stated in the notice as the date or time when any action will occur or
has occurred. 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 of the effectiveness of the waiver.
(b) A shareholder's attendance at a meeting (i) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and (ii) waives objection to 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.
2.11 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required
or permitted to be taken at a shareholders meeting may be taken without a
meeting if all of the shareholders entitled to vote thereon consent to such
action in writing. Action taken pursuant to this Section 2.11 shall be effective
when the Corporation has received writings that describe and consent to the
action, signed by all of the shareholders entitled to vote thereon. Action taken
pursuant to this Section 2.11 shall be effective as of the date the last writing
necessary to effect the action is received by the Corporation, unless all of the
writings necessary to effect the action specify another date, which may be
before or after the date the writings are received by the Corporation. Such
action shall have the same effect as action taken at a meeting of shareholders
and may be described as such in any document. Any shareholder who has signed a
writing describing and consenting to an action taken pursuant to this Section
2.11 may revoke such consent by a writing signed by the shareholder describing
the action and stating that the shareholder's prior consent thereto is revoked,
if such writing is received by the Corporation before the effectiveness of the
action.
2.12 MEETINGS BY TELECOMMUNICATIONS. 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.
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ARTICLE III - DIRECTORS
3.1 AUTHORITY OF THE BOARD OF DIRECTORS. The 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, a board of directors.
3.2 NUMBER. The number of directors shall be at least three (3) and
not more than seven (7). Within that range, the number of directors shall be as
stated by resolution adopted by the board of directors from time to time, but no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director.
3.3 QUALIFICATION. Directors shall be natural persons at least
eighteen years old but need not be residents of the State of Colorado or
shareholders of the Corporation.
3.4 ELECTION. The board of directors shall be elected at the annual
meeting of the shareholders or at a special meeting called for that purpose.
3.5 TERM. Each director shall be elected to hold office until the
next annual meeting of shareholders and until the director's successor is
elected and qualified.
3.6 RESIGNATION. A director may resign at any time by giving written
notice of his or her resignation to any other director or (if the director is
not also the secretary) to the secretary. The resignation shall be effective
when it is received by the other director or secretary, as the case may be,
unless the notice of resignation specifies a later effective date. Acceptance of
such resignation shall not be necessary to make it effective unless the notice
so provides.
3.7 REMOVAL. Any director may be removed by the shareholders of the
voting group that elected the director, with or without cause, at a meeting
called for that purpose. The notice of the meeting shall state that the purpose,
or one of the purposes, of the meeting is removal of the director. A director
may be removed only if the number of votes cast in favor of removal exceeds the
number of votes cast against removal.
3.8 VACANCIES.
(a) If a vacancy occurs on the board of directors, including a
vacancy resulting from an increase in the number of directors:
(i) The shareholders may fill the vacancy at the next
annual meeting or at a special meeting called for that purpose; or
(ii) The board of directors may fill the vacancy; or
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(iii) If the directors remaining in office constitute
fewer than a quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
(b) Notwithstanding Section 3.8(a), if the vacant office was
held by a director elected by a voting group of shareholders, then, if one or
more of the remaining directors were elected by the same voting group, only such
directors are entitled to vote to fill the vacancy if it is filled by directors,
and they may do so by the affirmative vote of a majority of such directors
remaining in office; and only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific later date, by
reason of a resignation that will become effective at a later date under Section
3.6 or otherwise, may be filled before the vacancy occurs, but the new director
may not take office until the vacancy occurs.
3.9 MEETINGS. The board of directors may hold regular or special
meetings within or outside of Colorado. A regular meeting shall be held without
notice immediately after and at the same place as the annual meeting of the
shareholders. The board of directors may, by resolution, establish other dates,
times and places for additional regular meetings, which may thereafter be held
without further notice. Special meetings may be called by the president or by
any two directors and shall be held at the principal office of the Corporation
unless otherwise specified in the notice of the meeting. At any time when the
board consists of a single director, that director may act at any time, date, or
place without notice.
3.10 NOTICE OF SPECIAL MEETING. Notice of a special meeting shall be
given to every director at least seventy-two (72) hours before the time of the
meeting, stating the date, time, and place of the meeting. The notice should
describe the purpose of the meeting. Notice may be given orally to the director,
personally or by telephone or other wire or wireless communication. Notice may
also be given in writing by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier. Notice shall be effective
at the earliest of (a) the time it is received; (b) five days after it is
deposited in the United States mail, properly addressed to the last address for
the director shown on the records of the Corporation, first class postage
prepaid or (c) the date shown on the return receipt if mailed by registered or
certified mail, return receipt requested, postage prepaid, in the United States
mail and if the return receipt is signed by the director to which the notice is
addressed.
3.11 QUORUM. Except as provided in Section 3.8, a majority of the
number of directors fixed in accordance with these Bylaws shall constitute a
quorum for the transaction of business at all meetings of the board of
directors. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
otherwise specifically required by law.
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3.12 WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting before or
after the time and date of the meeting stated in the notice. Except as provided
by Section 3.12(b), the waiver shall be in writing and shall be signed by the
director. Such waiver shall be delivered to the secretary for filing with the
corporate records, but such delivery and filing shall not be conditions of the
effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting
waives any required notice to him or her of the meeting unless, at the beginning
of the meeting or promptly upon his or her later 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.
3.13 MEETINGS BY TELECOMMUNICATIONS. One or more 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.
3.14 DEEMED ASSENT TO ACTION. A director who is present at a meeting
of the board of directors when corporate action is taken shall be deemed to have
assented to all action taken at the meeting unless
(i) The director objects at the beginning of the
meeting, or promptly upon his or her arrival, to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to any action taken at the meeting;
(ii) The director contemporaneously requests that his or
her dissent or abstention as to any specific action taken be entered in the
minutes of the meeting; or
(iii)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 the meeting before adjournment of the meeting or by the secretary
(or, if the director is the secretary, by another director) promptly after
adjournment of the meeting.
The right of dissent or abstention pursuant to this Section 3.14 as to a
specific action is not available to a director who votes in favor of the action
taken.
3.15 ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted by law to be taken at a board of directors meeting may be taken
without a meeting if all members of the board consent to such action in writing.
The action shall be deemed to have been so taken by the board at the time the
last director signs a writing describing the
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action taken, unless, before such time, any director has revoked his or her
consent by a writing signed by the director and received by the president or the
secretary or any other person authorized by board of directors to receive such a
revocation. Such action shall be effective at the time and date it is so taken
unless the directors establish a different effective time or date. Such action
has the same effect as action taken at a meeting of directors and may be
described as such in any document.
3.16 Institution of Bankruptcy Proceedings. Any corporate action in
respect of the institution of any proceeding by or against the Corporation
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property, shall be taken by the following
procedure:
(i) the institution of such proceedings must be recommended in
writing by the President of the Corporation to all members
of the Board of Directors of the Corporation; and
(ii) the institution of such proceeding must be approved by
the unanimous consent of the Board of Directors of the
Corporation by resolution at a meeting to be held after
receipt by the Board of Directors of the Corporation of
such written recommendation from the President of the
Corporation.
ARTICLE IV - COMMITTEES OF THE BOARD OF DIRECTORS
4.1 Subject to the provisions of section 7-109-106 of the Act, the
board of directors may create one or more committees and appoint one or more
members of the board of directors to serve on them. The creation of a committee
and appointment of members to it shall require the approval of a majority of all
the directors in office when the action is taken, whether or not those directors
constitute a quorum of the board.
4.2 The provisions of these bylaws governing meetings, action
without meeting, notice, waiver of notice, and quorum and voting requirements of
the board of directors apply to committees and their members as well.
4.3 To the extent specified by resolution adopted from time to time
by a majority of all the directors in office when the resolution is adopted,
whether or not those directors constitute a quorum of the board, each committee
shall exercise the authority of the board of directors with respect to the
corporate powers and the management of the business and affairs of the
Corporation, except that a committee shall not:
(a) authorize distributions;
(b) approve or propose to shareholders action that the
Colorado Business Corporation Act requires to be approved by shareholders;
(c) fill vacancies on the board of directors or on any of its
committees;
(d) amend the articles of incorporation pursuant to section
7-110-102 of the Colorado Business Corporation Act;
(e) adopt, amend, or repeal bylaws;
(f) approve a plan of merger not requiring shareholder
approval;
(g) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of directors; or
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(h) authorize or approve the issuance or sale of shares, or a
contract for the sale of shares, or determine the designation and 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.
4.4 The creation of, delegation of authority to, or action by, a
committee does not alone constitute compliance by a director with applicable
standards of conduct.
ARTICLE V - OFFICERS
5.1 GENERAL. The Corporation shall have as officers a president, a
secretary, and a treasurer, who shall be appointed by the board of directors.
The board of directors may appoint as additional officers a chairman and other
officers of the board. The board of directors, the president, and such other
subordinate officers as the board of directors may authorize from time to time,
acting singly, may appoint as additional officers one or more vice presidents,
assistant secretaries, assistant treasurers, and such other subordinate officers
as the board of directors, the president, or such other appointing officers deem
necessary or appropriate. The officers of the Corporation shall hold their
offices for such terms and shall exercise such authority and perform such duties
as shall be determined from time to time by these Bylaws, the board of
directors, or (with respect to officers whom are appointed by the president or
other appointing officers) the persons appointing them; provided, however, that
the board of directors may change the term of offices and the authority of any
officer appointed by the president or other appointing officers. Any two or more
offices may be held by the same person. The officers of the Corporation shall be
natural persons at least eighteen years old.
5.2 TERM. Each officer shall hold office from the time of
appointment until the time of removal or resignation pursuant to Section 3.6 or
until the officer's death.
5.3 REMOVAL AND RESIGNATION. Any officer appointed by the board of
directors may be removed at any time by the board of directors. Any officer
appointed by the president or other appointing officer may be removed at any
time by the board of directors or by the person appointing the officer. Any
officer may resign at any time by giving written notice of resignation to any
director (or to any director other than the resigning officer if the officer is
also a director), to the president, to the secretary or to the officer who
appointed the officer. Acceptance of such resignation shall not be necessary to
make it effective, unless the notice so provides.
5.4 PRESIDENT. The president shall preside at all meetings of
shareholders, and the president shall also preside at all meetings of the board
of directors unless the board of directors has appointed a chairman, vice
chairman, or other officer of the board and has authorized such person to
preside at meetings of the board of directors instead of the president. Subject
to the direction and control of the board of directors, the president shall be
the chief
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executive officer of the Corporation and, as such shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the board of directors are carried into effect. The president may
negotiate, enter into and execute contracts, deeds, and other instruments on
behalf of the Corporation as are necessary and appropriate to the conduct to the
business and affairs of the Corporation or as are approved by the board of
directors. The president shall have such additional authority and duties as are
appropriate and customary for the office of president and chief executive
officer, except as the same may be expanded or limited by the board of directors
from time to time.
5.5 VICE PRESIDENT. The vice president, if any, or, if there are
more than one, the vice presidents in the order determined by the board of
directors or the president (or, if no such determination is made, in the order
of their appointment), shall be the officer or officers next in seniority after
the president. Each vice president shall have such authority and duties as are
prescribed by the board of directors or the president. Upon the death, absence,
or disability of the president, the vice president, if any, or, if there are
more than one, the vice presidents in the order of seniority as determined
above, shall have the authority and duties of the president.
5.6 SECRETARY. The secretary shall be responsible for the
preparation and maintenance of minutes of the meetings of the board of directors
and of the shareholders and of the other records and information required to be
kept by the Corporation under section 7-116-101 of the Act and for
authenticating records of the Corporation. The secretary shall also give, or
cause to be given, notice of all meetings of the shareholders and special
meetings of the board of directors, keep the minutes of such meetings, have
charge of the corporate seal and have authority to affix the corporate seal to
any instrument requiring it (and, when so affixed, it may be attested by the
secretary's signature), be responsible for the maintenance of all other
corporate records and files and for the preparation and filing of reports to
governmental agencies (other than tax returns), and have such other authority
and duties as are appropriate and customary for the office of secretary, except
as the same may be expanded or limited by the board of directors from time to
time.
5.7 ASSISTANT SECRETARY. The assistant secretary, if any, or, if
there are more than one, the assistant secretaries shall, under the supervision
of the secretary, perform such duties and have such authority as may be
prescribed from time to time by the board of directors or the secretary. Upon
the death, absence, or disability of the secretary, the assistant secretary, if
any, or, if there are more than one, the assistant secretaries in the order
designated by the board of directors or the secretary (or, if no such
determination is made, in the order of their appointment), shall have the
authority and duties of the secretary.
5.8 TREASURER. The treasurer shall have control of the funds and the
care and custody of all stocks, bonds, and other securities owned by the
Corporation, and shall be responsible for the preparation and filing of tax
returns. The treasurer shall receive all moneys paid to the Corporation and,
subject to any limits imposed by the board of directors, shall have authority to
give receipts and vouchers, to sign and endorse checks and warrants in
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the Corporation's name and on the Corporation's behalf, and give full discharge
for the same. The treasurer shall also have charge of disbursement of funds of
the Corporation, shall keep full and accurate records of the receipts and
disbursements, and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors. The treasurer shall have such additional
authority and duties as are appropriate and customary for the office of
treasurer, except as the same may be expanded or limited by the board of
directors from time to time.
5.9 ASSISTANT TREASURER. The assistant treasurer, if any, or, if
there are more than one, the assistant treasurers shall, under the supervision
of the treasurer, have such authority and duties as may be prescribed from time
to time by the board of directors or the treasurer. Upon the death, absence, or
disability of the treasurer, the assistant treasurer, if any, or if there are
more than one, the assistant treasurers in the order determined by the board of
directors or the treasurer (or, if no such determination is made, in the order
of their appointment), shall have the authority and duties of the treasurer.
5.10 COMPENSATION. Officers shall receive such compensation for
their services as may be authorized or ratified by the board of directors.
Election or appointment of an officer shall not of itself create a contractual
right to compensation for services performed as such officer.
ARTICLE VI - INDEMNIFICATION
6.1 DEFINITIONS. As used in this Article VI:
(a) "Corporation" includes any domestic or foreign entity that
is a predecessor of the Corporation by reason of a merger or other transaction
in which the predecessor's existence ceased upon consummation of the
transaction.
(b) "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, fiduciary or agent of another domestic or foreign corporation
or other person or of an employee benefit plan. A director is considered to be
serving an employee benefit plan at the Corporation's request if his or her
duties to the Corporation also impose duties on, or otherwise involve services
by, the director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(c) "Expenses" includes counsel fees.
(d) "Liability" means the obligation incurred with respect to
a proceeding to pay a judgment, settlement, penalty, fine, including an excise
tax assessed with respect to an employee benefit plan, or reasonable expenses.
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(e) "Official capacity" means, when used with respect to a
director, the office of director in the Corporation and, when used with respect
to a person other than a director as contemplated in Section 6.7, the office in
the Corporation held by the officer or the employment, fiduciary or agency
relationship undertaken by the employee, fiduciary or agent on behalf of the
Corporation. "Official capacity" does not include service for any other domestic
or foreign corporation or other person or employee benefit plan.
(f) "Party" includes a person who was, is or is threatened to
be made, a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
6.2 AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Section 6.2(d), the Corporation
shall indemnify a person made a party to a proceeding because the person is or
was a director against liability incurred in the proceeding if:
(i) The person conducted himself or herself in good
faith; and
(ii) The person reasonably believed:
(A) In the case of conduct in an official capacity
with the Corporation, that his or her conduct was in the Corporation's best
interests; and
(B) In all other cases, that his or her conduct was
at least not opposed to the Corporation's best interests; and
(iii) In the case of any criminal proceeding, the person
had no reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to an employee benefit
plan for a purpose the director reasonably believed to be in the interests of
the participants in or beneficiaries of the plan is conduct that satisfies the
requirement of Section 6.2(a)(ii)(B). A director's conduct with respect to an
employee benefit plan for a purpose that the director did not reasonably believe
to be in the interests of the participants in or beneficiaries of the plan shall
be deemed not to satisfy the requirements of Section 6.2(a)(i).
(c) The termination of a proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the standard of
conduct described in this Section 6.2.
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(d) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation may not indemnify a director under this Section
6.2:
(i) In connection with a proceeding by or in the right
of the Corporation in which the director was adjudged liable to the Corporation;
or
(ii) In connection with any other proceeding charging
that the director derived an improper personal benefit, whether or not involving
action in an official capacity, in which proceeding the director was adjudged
liable on the basis that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Section 6.2 in
connection with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
6.3 MANDATORY INDEMNIFICATION OF DIRECTORS. The Corporation shall
indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the person was a party because the person is
or was a director, against reasonable expenses incurred by him or her in
connection with the proceeding.
6.4 ADVANCE OF EXPENSES TO DIRECTORS.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(i) The director furnishes to the Corporation a written
affirmation of the director's good faith belief that he or she has met the
standard of conduct described in Section 6.2.
(ii) The director furnishes to the Corporation a written
undertaking, executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that he or she did not meet the standard
of conduct; and
(iii) A determination is made that the facts then known
to those making the determination would not preclude indemnification under this
Article VI.
(b) The undertaking required by Section 6.4(a)(ii) shall be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this
Section 6.4 shall be made in the manner specified in Section 6.6.
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6.5 COURT-ORDERED INDEMNIFICATION OF DIRECTORS. A director who is or
was a party to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court, after giving any notice the court
considers necessary, may order indemnification in the following manner:
(i) If it determines that the director is entitled to
mandatory indemnification under Section 6.3, the court shall order
indemnification, in which case the court shall also order the Corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification.
(ii) If it determines that the director is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director met the standard of conduct set forth
in Section 6.2(a) or was adjudged liable in the circumstances described in
Section 6.2(d), the court may order such indemnification as the court deems
proper; except that the indemnification with respect to any proceeding in which
liability shall have been adjudged in the circumstances described in Section
6.2(d) is limited to reasonable expenses incurred in connection with the
proceeding and reasonable expenses incurred to obtain court ordered
indemnification.
6.6 DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF DIRECTORS.
(a) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation shall not indemnify a director under Section 6.2
unless authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because the
director has met the standard of conduct set forth in Section 6.2. The
Corporation shall not advance expenses to a director under Section 6.4 unless
authorized in the specific case after the written affirmation and undertaking
required by Section 6.4(a)(i) and 6.4(a)(ii) are received and the determination
required by Section 6.4(a)(iii) has been made.
(b) The determinations required by Section 6.6(a) shall be
made:
(i) By the board of directors by a majority vote of
those present at a meeting at which a quorum is present, and only those
directors not parties to the proceeding shall be counted in satisfying the
quorum; or
(ii) If a quorum cannot be obtained, by a majority vote
of a committee of the board of directors designated by the board of directors,
which committee shall consist of two or more directors not parties to the
proceeding; except that directors who are parties to the proceeding may
participate in the designation of directors for the committee.
(c) If a quorum cannot be obtained as contemplated in Section
6.6(b)(i), and a committee cannot be established under Section 6.6(b)(ii), or
even if a
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quorum is obtained or a committee is designated, if a majority of the directors
constituting such quorum or such committee so directs, the determination
required to be made by Section 6.6(a) shall be made:
(i) By independent legal counsel selected by a vote of
the board of directors or the committee in the manner specified in Section
6.6(b)(i) or 6.6(b)(ii), or, if a quorum of the full board cannot be obtained
and a committee cannot be established, by independent legal counsel selected by
a majority vote of the full board of directors; or
(ii) By the shareholders.
(d) Authorization of indemnification and advance of expenses
shall be made in the same manner as the determination that indemnification or
advance of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is required or permissible is made by
independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected such counsel.
6.7 INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS.
(a) The Corporation shall indemnify and advance expenses to an
officer to the same extent as a director.
(b) The Corporation may indemnify and advance expenses to an
employee, fiduciary or agent of the Corporation to the same extent as to a
director.
(c) The Corporation may also indemnify and advance expenses to
an officer, employee, fiduciary or agent who is not a director to a greater
extent than is provided in these bylaws, if not inconsistent with public policy,
and if provided for by general or specific action of its board of directors or
shareholders or by contract.
6.8 INSURANCE. The Corporation may purchase and maintain insurance
on behalf of a person who is or was a director, officer, employee, fiduciary or
agent of the Corporation, or who, while a director, officer, employee, fiduciary
or agent of the Corporation, is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of
another domestic or foreign corporation or other person or of an employee
benefit plan, against liability asserted against or incurred by the person in
that capacity or arising from his or her status as a director, officer,
employee, fiduciary or agent, whether or not the Corporation would have power to
indemnify the person against the same liability under Section 6.2, 6.3, or 6.7.
Any such insurance may be procured from any insurance company designated by the
board of directors, whether such insurance company is formed under the laws of
this state or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the Corporation has an equity or any
other interest through stock ownership or otherwise.
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6.9 NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF DIRECTOR. If the
Corporation indemnifies or advances expenses to a director under this Article VI
in connection with a proceeding by or in the right of the Corporation, the
Corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII - SHARES
7.1 CERTIFICATES. Certificates representing shares of the capital
stock of the Corporation shall be in such form as is approved by the board of
directors and shall be signed by the chairman or vice chairman of the board of
directors (if any), or the president or any vice president, and by the secretary
or an assistant secretary or the treasurer or an assistant treasurer. All
certificates shall be consecutively numbered, and the names of the owners, the
number of shares and the date of issue shall be entered on the books of the
Corporation. Each certificate representing shares shall state upon its face:
(a) that the Corporation is organized under the laws of the
State of Colorado;
(b) the name of the person to whom the shares are issued;
(c) the number and class of the shares and the designation of
the series, if any, that the certificate represents;
(d) the par value, if any, of each share represented by the
certificate;
(e) on the front or the back, (i) a summary of the
designations, preferences, limitations, and relative rights applicable to each
class, the variations in preferences, limitations, and rights determined for
each series, and the authority of the board of directors to determine variations
for future classes or series; or (ii) a conspicuous statement that the
Corporation will furnish to the shareholder, on request in writing and without
charge, information concerning the designations, preferences, limitations, and
relative rights applicable to each class, the variations in preferences,
limitations, and rights determined for each series, and the authority of the
board of directors to determine variations for future classes or series; and
(f) any restrictions imposed by the Corporation upon the
transfer of the shares represented by the certificate.
7.2 FACSIMILE SIGNATURES. Where a certificate is signed (a) by a
transfer agent other than the Corporation or its employee, or (b) by a registrar
other than the
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Corporation or its employee, any or all of the officers' signatures on the
certificate required by Section 7.1 may be facsimile. If any officer, transfer
agent or registrar who has signed, or whose facsimile signature or signatures
have been placed upon, any certificate, shall cease to be such officer, transfer
agent or registrar, whether because of death, resignation, or otherwise, before
the certificate is issued by the Corporation, it may nevertheless be issued by
the Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
7.3 TRANSFERS OF SHARES. Transfers of shares shall be made on the
books of the Corporation only upon presentation of the certificate or
certificates representing such shares properly endorsed by the person or persons
appearing upon the face of such certificate to be the owner, or accompanied by a
proper transfer or assignment separate from the certificate, except as may
otherwise be expressly provided by the statutes of the State of Colorado or by
order of a court of competent jurisdiction. The officers or transfer agents of
the Corporation may, in their discretion, require a signature guaranty before
making any transfer. Except to the extent the Corporation otherwise provides
pursuant to Section 7.4 and except for the assertion of dissenters' rights to
the extent provided in Article 113 of the Colorado Business Corporation Act, the
Corporation shall be entitled to treat the person in whose name any shares are
registered on its books as the owner of those shares for all purposes and shall
not be bound to recognize any equitable or other claim or interest in the shares
on the part of any other person, whether or not the Corporation shall have
notice of such claim or interest.
7.4 LOST, STOLEN OR DESTROYED CERTIFICATES. Any Shareholder claiming
that his Certificate for shares is lost, stolen or destroyed may make an
affidavit or affirmation of that fact and lodge the same with the Secretary of
the Corporation with a signed application for a new certificate. Then, upon the
receipt of a satisfactory indemnity bond in an amount not exceeding double the
value of the Shares represented by the lost Certificate (the actual amount
required to be determined by the President and Treasurer), the Corporation shall
issue a new Certificate for the same number of shares and the same class and
series of stock as represented by the Certificate which was lost, stolen or
destroyed.
7.5 SHARES HELD FOR ACCOUNT OF ANOTHER. The board of directors may
adopt by resolution a procedure whereby a shareholder of the Corporation may
certify in writing to the Corporation that all or a portion of the shares
registered in the name of such shareholder are held for the account of a
specified person or persons. The resolution shall set forth:
(a) the classification of shareholders who may certify;
(b) the purpose or purposes for which the certification may be
made;
(c) the form of certification and the information to be
contained therein;
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(d) if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or the
closing of the stock transfer books within which the certification must be
received by the Corporation; and
(e) such other provisions with respect to the procedure as are
deemed necessary or desirable. Upon receipt by the Corporation of a
certification complying with the procedure, the persons specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the holders of record of the number of shares specified in
place of the shareholder making the certification.
ARTICLE VIII - VOTE OF SECURITIES HELD BY THE CORPORATION
Unless otherwise ordered by the Board, the President shall have full
power and authority to attend, to act and to vote at any meeting of security
holders of other corporations in which the Corporation may hold securities. At
such meetings, the President may exercise any and all of the Corporation's
ownership rights and powers. The Board may, from time to time, confer like
powers upon any other person or persons.
ARTICLE IX - MISCELLANEOUS
9.1 CORPORATE SEAL. The board of directors may adopt a seal,
circular in form and bearing the name of the Corporation and the words "SEAL"
and "COLORADO," which, when adopted, shall constitute the seal of the
Corporation. The seal may be used by causing it or a facsimile of it to be
impressed, affixed, manually reproduced or rubber stamped with indelible ink.
9.2 FISCAL YEAR. The board of directors may, by resolution, adopt a
fiscal year for the Corporation.
9.3 RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder
writings consenting to an action, and other documents or writings shall be
deemed to have been received by the Corporation when they are received:
(a) at the registered office of the Corporation in the State
of Colorado;
(b) at the principal office of the Corporation (as that office
is designated in the most recent document filed by the Corporation with the
Secretary of State for the State of Colorado designating a principal office)
addressed to the attention of the secretary of the Corporation;
(c) by the secretary of the Corporation wherever the secretary
may be found; or
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(d) by any other person authorized from time to time by the
board of directors, the president or the secretary to receive such writings,
wherever such person is found.
9.4 AMENDMENT OF BYLAWS. These Bylaws may at any time and from time
to time be amended, supplemented or repealed by the board of directors.
The undersigned secretary of the Corporation hereby certifies that
the foregoing bylaws are the bylaws of the Corporation in effect on
November 3, 1997.
By: /s/ Timothy B. Owen
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Timothy B. Owen, Secretary
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