EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
CORPORATE EXPRESS, INC.
ARTICLE I
Offices and Agents
------------------
1. Principal Office. The principal office of the Corporation shall
----------------
be located in Broomfield, Colorado, or elsewhere within or without the State of
Colorado, as may be subsequently designated by the Board of Directors. 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 or as
the business of the Corporation may require from time to time.
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 Meeting. 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. The date, time and place of the annual
meeting shall be determined by resolution of the Board of Directors. 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 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 chief executive officer, by the president, by resolution of the Board of
Directors or by the Board of Directors 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. The person or persons
authorized to call and so calling any special meeting of the shareholders
pursuant to Section 2 of this Article II may designate any place, within or
without the State of Colorado, as the place for the meeting. If no designation
is made, 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. Except as otherwise provided in these Bylaws
-----------------
or by the Colorado Business Corporation Act, notice stating the date, time and
place of the meeting shall be given no fewer than ten (10) and no more than
sixty (60) days before the date of the meeting, except that if the number of
authorized shares is to be increased, at least thirty (30) days' notice shall be
given. Notice shall be given personally or by mail, private carrier, telephone
(if reasonable under the circumstances), telegraph, teletype, electronically
transmitted facsimile or other form of wire or wireless communication by or at
the direction of the chief executive officer, 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. To the extent
permitted by law, any previously scheduled meeting of the shareholders may be
postponed, and any special meeting of the shareholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of shareholders.
-2-
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.
5. Waiver of Notice. Any shareholder, either before, or after any
----------------
shareholders' meeting, may waive in writing notice of the meeting, and his
waiver shall be deemed the equivalent of giving notice. By attending a meeting,
a shareholder waives his right to object to lack of notice or to a defective
notice unless the shareholder objects to the holding of such meeting or the
transacting of business at such meeting at the beginning of such meeting, and
waives his right to object to consideration at such meeting of a particular
matter within the purpose or purposes described in the meeting notice, unless
such shareholder objects to considering the matter when it is presented.
6. Fixing of Record Date. The Board of Directors of the Corporation
---------------------
may provide that the stock transfer books shall be closed for a stated period,
but not to exceed, in any case, fifty (50) days. If the stock transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders such books shall be closed for at
least ten (10) days immediately preceding said meeting. The Board of Directors
may fix in advance a date as the record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to received payment of any
dividend or in order to make a determination of shareholder for any other proper
purpose, such date in any case to be not more then seventy (70) days and, in
case of a meeting of shareholders, 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 for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this Section such determination shall apply to any adjournment thereof.
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. The officer or agent having charge of the stock
-----------
transfer books for share of the Corporation shall make, at least ten (10) days
before each meeting of
-3-
shareholders, a complete list of the shareholders entitled to vote at such
meeting (or any adjournment thereof) arranged in alphabetical order by voting
groups and within each voting group by class or series, with the address of and
the number of shares held by each, which list, for a period of ten (10) days
prior to such meeting, shall be kept on file at the principal office of the
Corporation, whether within or without the State of Colorado. A shareholder, his
agent or attorney may 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 the date of the demand, (ii) the demand is made
in good faith and for a 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 cost of production and reproduction.
Such list shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder for any
purpose germane to the meeting during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders.
8. Proxies. At all meetings of shareholders, a shareholder may
-------
vote by proxy by signing an appointment form either personally or by his 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, including an electronically transmitted facsimile,
of an appointment of a proxy may be substituted for or used in lieu of the
original appointment for 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 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 authority under the appointment. Other notice of revocation
may, in the discretion of the
-4-
Corporation, be deemed to include the appearance at a shareholders meeting of
the shareholder who granted the proxy appointment and his 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 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 shareholders 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 any irrevocable
appointment may revoke the appointment if the transferee did not know of its
existence when he acquired the shares and the irrevocable appointment was not
noted on the certificate representing the shares.
Subject to the provisions of Article II, Section 10 below or any
express limitation on the proxy's authority appearing on the appointment form, a
corporation is entitled to accept the proxy's vote or other action as that of
the shareholder making the appointment.
9. Voting Rights. Except to the extent that the voting rights of
-------------
the shares of any class or series are otherwise established, limited or denied
by the Articles of Incorporation and except as otherwise required by law, each
outstanding share, regardless of class, shall be entitled to one vote and each
fractional share is entitled to a corresponding fractional vote on each matter
submitted to a vote at a meeting of shareholders.
At each election for directors every shareholder of record entitled to
vote at such election shall have the right to vote in person or by proxy the
number of votes to which such shareholder is entitled for as many persons as
there are directors to be elected and for whose election he has a right to vote.
Cumulative voting shall not be permitted for any purpose.
Except as permitted by law, no shares held by another corporation, if
the majority of shares entitled to vote for the election of directors of such
other corporation are held by this Corporation, shall be voted at any meeting or
counted in determining the total number of outstanding shares entitled to vote
at any given time. Except as provided in the preceding sentence, shares
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent or proxy as the Bylaws of such corporation may prescribe
or, in the absence of such provision, as the Board of Directors of such
corporation may determine, or in the absence of such determination, by the chief
executive officer of such corporation.
-5-
If shares having voting power stand of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares, voting
with respect to the shares shall have the following effect: (i) if only one
person votes, his act binds all; (ii) if two or more persons vote, but the vote
is evenly split on any particular matter, each faction may vote the shares in
question proportionately, or any person voting the shares of a beneficiary, if
any, may apply to any court of competent jurisdiction in the State of Colorado
to appoint an additional person to act with the persons voting the shares. The
shares shall then be voted as determined by a majority of such persons and the
person appointed by the court. If a tenancy is held in unequal interests, a
majority or even split for the purpose of this subsection shall be a majority or
even split in interest, except that the effects of voting stated above shall not
be applicable if the secretary of the Corporation is given written notice of
alternative voting provisions and is furnished with a copy of the instrument or
order wherein the alternate voting provisions are stated.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing in the name of a trustee may be voted by him,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
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;
-6-
(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 shareholders 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 contenants or fiduciaries; or
(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 a 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. Except as otherwise provided
------------------------------
in the Articles of Incorporation, the presence, in person or by proxy, of the
holders of a majority of the shares outstanding and entitled to vote shall
constitute a quorum at meetings of the shareholders. If a quorum is present, the
affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the shareholders
unless the vote of a greater number or voting by classes is required by the
Colorado Business Corporation Act or the Articles of Incorporation. In the event
any shareholders withdraw from a duly organized meeting at which a quorum was
initially present, the remaining shares represented shall constitute a quorum
for the purpose of continuing to do business, and the affirmative vote of the
majority of the remaining shares represented at the meeting and entitled to vote
on the subject matter shall be the act of the shareholders unless the vote of a
greater number or voting by classes is required by the Colorado Business
Corporation Act or the Articles of Incorporation.
-7-
12. Adjournments. The Chairman of a meeting or the holders of a
------------
majority of the shares entitled to vote, represented in person or by proxy, may
adjourn the meeting from time to time, whether or not there is a quorum. No
notice of the time and place of adjourned meetings need be given except as
required by law. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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 thereon consent to such action in
writing. Action taken under this Section 13 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 a later date
as the effective date of the action, in which case such later date shall be the
effective date of the action. If the Corporation received writings describing
and consenting to the action signed by all of the shareholders entitled to vote
with respect to the action, the effective date of the action may be any date
that is specified in all of the writings as 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 signature
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.
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 by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, but only if such writing is
received by the Corporation before the effectiveness of the action.
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 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.
15. Notice of Shareholder Business and Nominations. (a) Notice
----------------------------------------------
Required. (1) Nominations of persons for election to the Board of Directors of
the Corporation may be made at an annual meeting of shareholders, or at a
special meeting of shareholders at which directors are to be elected pursuant to
the Corporation's notice of meeting, and the proposal of business to be
considered by the shareholders may be made at an annual meeting of shareholders,
(A) pursuant to the Corporation's notice of meeting, (B) by or at the direction
of the Board of Directors or (C) by any shareholder of the Corporation who was a
shareholder of record at the time of the giving of notice provided for in this
Section 15(a), who is
-8-
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 15(a).
(2) For nominations or other business to be properly brought by a
shareholder pursuant to clause (C) of paragraph (1) of this Section 15(a) before
an annual meeting, or, in the case of nominations, before a special meeting
called by the Corporation for the purpose of electing one or more directors to
the Board of Directors, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation, in the case of an annual meeting, not
later than the close of business on the 90th day, nor earlier than the close of
business on the 120th day, prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date or in the event of a special meeting, notice by the shareholder
to be timely must be so delivered not earlier than the close of business on the
120th day prior to such meeting and not later than the close of business on the
later of the 90th day prior to such meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made. In no event
shall the public announcement of an adjournment of any meeting commence a new
time period for the giving of a shareholder's notice as described above. Such
shareholder's notice shall set forth (A) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is or would be required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
or would be otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (B) as
to any other business that the shareholder proposes to bring before an annual
meeting, a brief description of the business desired to be brought before the
annual meeting (including the complete text of any resolutions intended to be
presented thereat), the reasons for conducting such business at the annual
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (2)
of this Section 15(a) to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this Section 15(a) shall also be
considered timely, but only with respect to nominees for any new positions
created by
-9-
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
10th day following the day on which such public announcement is first made by
the Corporation.
(b) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 15 shall be eligible to serve as
directors, and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 15. Except as otherwise provided by
law, the Chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made, or proposed, as the case may be, in accordance with the procedures set
forth in this Section 15 and, if any proposed nomination or business is not in
compliance with this Section 15, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Section 15, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 15, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in or contemplated by this Section 15. Nothing in this Section 15 shall be
deemed to affect any rights of (i) shareholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) the holders of any series of Preferred Stock to elect
directors under specified circumstances.
16. Other Procedures for Shareholder Meetings. (a) Election of
-----------------------------------------
directors at all meetings of the shareholders at which directors are to be
elected shall be by ballot.
(b) The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of shareholders and
make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act or is able to act at a meeting of
shareholders, the Chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath to faithfully execute the duties of inspector with
strict impartiality and according to the best or his or her ability. The
inspectors shall have the duties prescribed by law.
(c) Meetings of shareholders shall be presided over by the Chairman
of the Board, if any, or in the absence or at the designation of the Chairman of
the Board, by the
-10-
Chief Executive Officer, or in the absence of the Chief Executive Officer, by
the President, or in the absence of the President, by a Vice President, or in
the absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation, by a chairman chosen at the
meeting. The Secretary, or in the absence of the Secretary an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
(d) The order of business at each meeting of shareholders shall be as
determined by the chairman of the meeting. The chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting, including, without limitation, the establishment of
procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the time of the opening and closing of the voting
polls.
ARTICLE III
Board of Directors
------------------
1. Number, Qualifications and Term of Office. Except as otherwise
-----------------------------------------
provided in the Articles of Incorporation or the Colorado Business Corporation
Act, the business and affairs of the Corporation shall be managed by a Board of
Directors, consisting of five members. Each director shall be a natural person
of the age of eighteen years or older, but does not need to be a resident of the
State of Colorado or a shareholder of the Corporation. The Board of Directors,
by resolution, may increase or decrease the number of directors from time to
time. Except as otherwise provided in these Bylaws, each director shall be
elected at each annual meeting of shareholders and shall hold such office until
the next annual meeting of shareholders and until his successor shall be elected
and shall qualify. No decrease in the number of directors shall have the effect
of shortening the term of any incumbent director.
2. Performance of Duties. Pursuant to the provisions of the Colorado
---------------------
Business Corporation Act, a director shall perform his duties as a director,
including his duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances.
3. Vacancies. Any director may resign at any time by giving written
---------
notice to the chairman of the Board of Directors and to the chief executive
officer, president or secretary of 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
-11-
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 remaining
Board of Directors even if less than a quorum is remaining in office. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase in
the number of directors shall be filled by the affirmative vote of a majority of
the directors then in office or by an election at an annual meeting or special
meeting of shareholders called for that purpose. A director elected to fill a
position resulting from an increase in the number of directors shall hold office
until the next annual meeting of shareholders and until his or her successor has
been elected and qualified.
4. Removal. At a meeting of shareholders called expressly for that
-------
purpose, the entire Board of Directors or any individual directors may be
removed from office without assignment of cause by the vote of the majority of
the shares entitled to vote an election of directors.
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, 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 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
---------------------
1. Place of Meetings. The regular or special meetings of the Board
-----------------
of Directors or of any committee designated by the Board shall be held at the
principal office of the Corporation or at any other place within or without the
State of Colorado that a majority of the Board of Directors or of any such
committee, as the case may be, may designate from time to time by resolution.
2. Regular Meetings. The Board of Directors shall meet each year
----------------
immediately before or after and at the same place as the annual meeting of the
shareholders for the
-12-
purpose of electing officers and transacting such other business as may come
before the meeting. The Board of Directors or any committee designated by the
Board 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 or
----------------
of any committee designated by the Board may be called at any time by the
chairman of the board, if any, by the chief executive officer, or by three or
more members of the Board of Directors or of any such committee, as the case may
be, provided that if any such committee consists of less than four members, then
a special meeting of such committee may be called by a majority of the members
thereof.
4. Notice of Meetings. Notice of the regular meetings of the Board
------------------
of Directors or of any committee designated by the Board 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 or of
any such committee setting forth the time and the place of the meeting shall be
given to each director not less than one (1) day 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 business address, by telephone (if
reasonable under the circumstances) 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 requested. If notice be given by telephone (if reasonable under
the circumstances), 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, 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 to him, 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 or of any committee designated by the
Board either before, at, or after the meeting and his waiver shall be deemed the
equivalent of giving notice. 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
-13-
of notice or defective notice and does not thereafter vote for or assent to
action taken at the meeting.
6. Quorum. At meetings of the Board of Directors or of any committee
------
designated by the Board a majority of the number of directors fixed by or
pursuant to these Bylaws, or a majority of the members of any such committee, as
the case may be, shall be necessary to 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, the act of the majority of directors present
shall be the act of the Board of Directors or of any such committee, as the case
may be, unless the act of a greater number is required by these Bylaws, the
Articles of Incorporation or the Colorado Business Corporation Act. The
directors present at a duly organized meeting may, to the extent permitted by
law, continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum.
7. Presumption of Assent. A director who is present at a meeting of
---------------------
the Board of Directors or a committee thereof when 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 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 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 dissent or abstention
as to any specific action to be received by the chairman of the Board, if any,
or the presiding officer of such meeting before its adjournment or to the
secretary within 15 minutes after adjournment of such meeting.
The right of dissent or abstention as to a specific action taken in a
meeting of a Board or a committee thereof is not available to a director who
votes in favor of the action taken.
8. Executive Committee; Other Committees. The Board of Directors
-------------------------------------
may, by a resolution adopted by a majority of the full Board of Directors,
designate one (1) or more of its members to constitute an executive committee
and one or more other committees, each of which shall have and may exercise all
of the authority of the Board of Directors or such lesser authority as may be
set forth in said resolution; except that no such committee shall have the
authority of the Board of Directors to: (i) declare dividends or distributions;
(ii) approve or recommend to shareholders actions or proposals required by the
Colorado Business Corporation Act to be approved by shareholders; (iii) fill
vacancies on the Board of Directors or any committee thereof; (iv) amend these
Bylaws; (v) approve a plan of merger
-14-
not requiring shareholder approval; (vi) reduce earned or capital surplus; (vii)
authorize or approve the reacquisition of shares unless pursuant to a general
formula method specified by the Board of Directors; or (viii) authorize or
approve the issuance or sale of, or any contract to issue or sell, shares or
designate the terms of a series of a class of shares and except that the Board
of Directors, having acted regarding general authorization for the issuance or
sale of shares or any contract therefor, may pursuant to a general formula or
method specified by the Board of Directors by resolution or by adoption of a
stock option or other plan, authorize a committee to fix the terms of any
contract for the sale of the shares and to fix the terms upon which such shares
may be issued or sold, including, without limitation, the price, the dividend
rate, provisions for redemption, sinking fund, conversion, or voting or
preferential rights, and provisions for other features of a class of shares or a
series of a class of shares, with full power in such committee to adopt any
final resolution setting forth all terms thereof and to authorize the statement
of the terms of a series for filing with the Secretary of State of the State of
Colorado under the Colorado Business Corporation Act. If any such delegation of
the authority of the Board of Directors is made as provided herein, all
references to the Board of Directors contained in these Bylaws, the Articles of
Incorporation, the Colorado Business Corporation Act or any other applicable law
or regulation relating to the authority so delegated shall be deemed to refer to
such committee.
Neither the designation of any such committee, the delegation of
authority to such committee, nor any action by such committee pursuant to its
authority shall alone constitute compliance by any member of the Board of
Directors, not a member of the committee in question, with his responsibility to
act in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances.
9. Informal Action by Directors. Any action required or permitted
----------------------------
be taken at a Board of Directors' meeting or a meeting of any committee thereof
may be taken without a meeting if all members thereof consent to such action in
writing and such writing is delivered to the secretary of the Corporation for
inclusion in the minutes or for filing with the corporate records. 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, before such time, a director has revoked his consent by a
writing signed by the director and received by the chief executive officer and
secretary. Action taken pursuant to this Section 9 has the same effect as action
taken at a meeting of the directors or committee members and may be described as
such in any document.
10. Telephonic Meetings. One or more members of the Board of
-------------------
Directors or any committee designated by the Board 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 at the meeting.
-15-
ARTICLE V
Standards of Conduct
--------------------
In discharging his 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) legal counsel, a
public accountant, or other person as to matters which the director or officer
reasonably believes to be within such persons' 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 liable as such to the Corporation or its
shareholders for any action he takes or omits to take as a director or officer,
as the case may be, if, in connection with such action or omission, he 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, a chief executive officer, a president and a secretary
and, in the discretion of the Board, a treasurer; in addition, one or more vice
presidents, and such other officers, assistant officers, agents and employees
that the board of Directors may from time to time deem necessary may be elected
by the Board of Directors or be appointed in a manner prescribed by the Board.
Two or more offices may be held by the same person. Officers shall hold office
until their successors are chosen and have qualified, unless they are sooner
removed from office as provided in these Bylaws. All officers of the Corporation
shall be natural persons of the age of eighteen years or older. Officers of the
Corporation need not be residents of the State of Colorado or directors or
shareholders of the Corporation.
2. General Duties. All officers and agents of the Corporation, as
--------------
between themselves and the Corporation, shall have such authority and shall
perform such duties in the management of the Corporation as may be provided in
these Bylaws or as may be determined by resolution of the Board of Directors not
inconsistent with these Bylaws. In all cases where the duties of any office,
agent or employee are not prescribed by the Bylaws or by the Board of Directors,
such officer, agent or employee shall follow the orders and instructions of the
chief executive officer.
3. Vacancies. When a vacancy occurs in one of the executive offices
---------
by reason of death, resignation or otherwise, it shall however be filed by a
resolution of the
-16-
Board of Directors. The officer so selected shall hold office until his
successor is chosen and qualified.
4. Salaries. The salaries of the officers, agents and employees of
--------
the Corporation may be fixed by the Board of Directors, or by any committee
designated by the Board or, in the absence of contrary resolution or action by
the Board, by the chief executive officer.
5. Resignation. An officer may resign at any time by giving written
-----------
notice of resignation to the chief executive officer of 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 office until the effective date and may fill the pending vacancy
before 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.
6. Removal. Any officer, agent or employee of this Corporation may
-------
be removed by the Board of Directors or the chief executive officer whenever in
its judgment the best interests of the Corporation may be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer, agent or employee
shall not, of itself, create contract rights.
7. Chairman of the Board. The chairman of the Board, if any, shall
---------------------
preside as chairman at meetings of the shareholders and the Board of Directors.
He shall, in addition, have such other duties as the Board may prescribe that he
perform. At the request of the chief executive officer, the chairman of the
Board may, in the case of the chief executive officer's absence or inability to
act, temporarily act in his place. In the case of death of the chief executive
officer or in the case of his absence or inability to act without having
designated the chairman of the Board to act temporarily in his place, the
chairman of the Board shall perform the duties of the chief executive officer,
unless the Board of Directors, by resolution, provides otherwise. If the
chairman of the Board shall be unable to act in place of the chief executive
officer, the president may exercise such powers and perform such duties as
provided below.
8. Chief Executive Officer. The chief executive officer shall,
-----------------------
subject to the direction and supervision of the Board of Directors, be the most
senior officer of the Corporation and shall have primary, general and active
control of its affairs and business and general supervision of its officers,
agents and employees. He shall have authority to expend Corporation funds, to
incur debt on behalf of the Corporation, and to acquire and dispose of property,
real and personal, tangible and intangible. In the event the position of
chairman of the Board shall not be occupied or the chairman shall be absent or
otherwise unable to act, the chief executive officer shall preside at meetings
of the shareholders and directors and shall discharge the duties of the
presiding officer. He shall, unless otherwise directed by the
-17-
Board of Directors, attend in person or by substitute appointed by him, 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 shall hold any stock. He may, on
behalf of the Corporation in person or by substitute or by proxy, execute
written waivers of notice and consents with respect to any such meetings. At all
such meetings and otherwise, the chief executive officer, in person or by
substitute or by proxy as aforesaid, may vote the stock so held by the
Corporation and may execute written consents and other instruments with respect
to such stock and may exercise any and all rights and powers incident to the
ownership of said stock, subject however to the instructions, if any, of the
Board of Directors. The chief executive officer shall have custody of the
treasurer's bond, if any.
9. President. The president shall assist the chief executive
---------
officer, as directed by the Board of Directors or the chief executive officer,
and shall perform such duties as may be assigned to him from time to time by the
Board of Directors or the chief executive officer. If the office of chief
executive officer is vacant, the president shall have the powers and perform the
duties of chief executive officer until such vacancy is filled by the Board of
Directors.
10. 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 chief executive officer may from time to time delegate to him. At the
request of the chief executive officer, in the case of the president's absence
or inability to act, any vice president may temporarily act in the president's
place. In the case of the death of the president, or in the case of his absence
or inability to act without having designated a vice president or vice
presidents to act temporarily in his place, the Board of Directors, by
resolution, may designate a vice president or vice presidents, to perform the
duties of the president.
11. Secretary. The secretary shall keep or cause to be kept in books,
---------
provided for that purpose, the minutes of the meetings of the shareholders,
executive committee, if any, and any other committees, and of the Board of
Directors; shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; shall be custodian of the
records and of the seal of the Corporation and see that the seal is affixed to
all documents, the execution of which on behalf of the Corporation under its
seal is duly authorized and in accordance with the provisions of these Bylaws;
and, in general, shall perform all duties incident to the office of secretary
and such other duties as may, from time to time, be assigned to him by the Board
of Directors by the president. In the absence of the secretary or his inability
to act, the assistant secretaries, if any, shall act with the same powers and
shall be subject to the same restrictions as are applicable to the secretary.
12. Treasurer. The treasurer shall have custody of corporate funds
---------
and securities. He shall keep full and accurate accounts of receipts and
disbursements and shall deposit all corporate monies and other valuable effects
in the name and to the credit of the Corporation in the depository or
depositories of the Corporation, and shall render an account
-18-
of his transactions as treasurer and of the financial condition of the
Corporation to the chief executive officer, president and/or the Board of
Directors upon request. 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 disbursing funds when authorized to do so
by the Board of Directors for the faithful performance of the duties of his
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 chief
executive officer or such other person appointed from time to time by the chief
executive officer. In the absence of the treasurer or his inability to act, the
assistant treasurers, if any, shall act with the same authority and shall be
subject to the same restrictions as are applicable to the treasurer.
13. Delegation of Duties. Whenever an officer is absent, or
--------------------
whenever, for any reason, the Board of Directors may deem it desirable, the
Board may delegate the powers and duties of an officer to any other officer or
officers or to any director or directors.
ARTICLE VII
Conflicts of Interests
----------------------
No contract or other transaction between the Corporation and one or
more of its directors, or any other corporation, partnership, association or
other organization in which one or more of its directors or officers is a
director or officer or is financially interested shall be either void or
voidable solely for that reason or solely because such director or officer is
present at or participates in the meeting of the Board of Directors or a
committee thereof that authorizes, approves, or ratifies such contract or
transaction or solely because their votes are counted for such purpose if:
(A) The material facts of such relationship, interest, contract
or transaction are disclosed to or known by the Board of Directors or committee
thereof, that in good faith authorizes, approves, or ratifies the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors are less than a quorum;
(B) The material facts of such relationship, interest, contract
or transaction are disclosed to or known by the shareholders entitled to vote
thereon, and the contract or transaction is specifically authorized, approved or
ratified in good faith by vote of the shareholders; or
(C) The contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the shareholders.
-19-
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE VIII
Indemnification of Officers, Directors and Others
-------------------------------------------------
1. Definitions. Unless the context of this Article VIII indicates
-----------
otherwise, initially capitalized terms used herein shall have the meanings given
in Section 7-109-101 of the Colorado Business Corporation Act.
2. Standards for Indemnification.
-----------------------------
A. General. Except as provided in Subsection B(4) below, the
-------
Corporation shall indemnify against Liability, to the fullest extent authorized
by the Colorado Business Corporation Act, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide a broader indemnification rights
than permitted prior thereto), incurred in any Proceeding by an individual made
a Party to the Proceeding because he is or was a Director or officer of the
Corporation or any subsidiary of the Corporation (an "Indemnitee") if: (a) he
conducted himself in good faith; (b) he reasonably believed: (i) in the case of
conduct in his Official capacity with the Corporation, that his conduct was in
the Corporation's best interests; or (ii) that in all other cases, that his
conduct was at least not opposed to the Corporation's best interests; and (c) in
the case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful.
B. Employee Benefit Plans. An Indemnitee's conduct with respect to
----------------------
an employee benefit plan for a purpose he reasonably believed to be in the
interests of participants in or beneficiaries of the plan is conduct that
satisfies the requirements of clause (b)(ii) of Subsection 2(A) above. An
Indemnitee's conduct with respect to an employee benefit plan for a purpose that
he did not reasonably believe to be in the interests of the participants in or
beneficiaries of the plan shall be deemed not to satisfy the requirements of
clause (i) of Subsection 2(A) above.
C. Termination of a Proceeding. The termination of any proceeding by
---------------------------
judgment, order, settlement, or conviction, or upon a plea of nolo contendere or
its equivalent, is not of itself determinative that the individual did not meet
the standard of conduct set forth in Subsection 2(A) above.
D. Cases in Which Indemnification is Prohibited. The Corporation
--------------------------------------------
may not indemnify an Indemnitee under this Section 2 either (a) in connection
with a Proceeding by or in the right of the Corporation in which the Indemnitee
was adjudged liable to the Corporation; or (b) in connection with any Proceeding
charging improper personal benefit to the
-20-
Indemnitee, whether or not involving action in his Official capacity, in which
he was adjudged liable on the basis that personal benefit was improperly
received by him.
E. Reasonable Expenses Only. Indemnification permitted under this
------------------------
Section B in connection with a Proceeding by or in the right of the Corporation
is limited to reasonable expenses incurred in connection with the Proceeding.
F. Application of Indemnification Obligations. The indemnity and
------------------------------------------
prepayment obligations of the Corporation and the standards for indemnification
set forth in this Article VIII shall apply in all cases, even if the conduct,
act or omission in question occurred prior to the date that such indemnity and
prepayment obligations were adopted by the Corporation by amendment to these
Bylaws.
3. Mandatory Indemnification. Unless limited by these Bylaws, the
-------------------------
Corporation shall be required to indemnify an Indemnitee who was wholly
successful, on the merits or otherwise, in defense of any Proceeding to which he
was a Party, against reasonable expenses incurred by him in connection with the
Proceeding.
4. Court Ordered Indemnification. Unless limited by these Bylaws, an
-----------------------------
Indemnitee 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:
A. Mandatory Indemnification. If it determines the Indemnitee is
-------------------------
entitled to mandatory indemnification under Section 3 above, the court shall
order indemnification, in which case the court shall also order the Corporation
to pay the Indemnitee's reasonable expenses incurred to obtain court-ordered
indemnification.
B. Indemnification Where Regardless of Meeting Standard of Conduct.
---------------------------------------------------------------
If it determines that the Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not he met
the standard of conduct set forth in Subsection 2(A) of this Article VIII or was
adjudged liable in the circumstances described in Subsection 2(D) of this
Article, 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 said
Subsection 2(D) is limited to reasonable expenses incurred.
5. Indemnification Procedure.
-------------------------
A. Authorization of Indemnification Required. The Corporation may
-----------------------------------------
not indemnify an Indemnitee under Section B of this Article VIII unless
authorized in the specific case after a determination has been made that
indemnification of the Indemnitee is per-
-21-
missible in the circumstances because he has met the standard of conduct set
forth in Subsection 2(A).
B. Determination by the Board of Directors. The determination
---------------------------------------
required to be made by Subsection 5(A) shall be made: (a) by the Corporation's
Board of Directors by a majority vote of a quorum, which quorum shall consist of
directors not parties to the Proceeding; or (b) if a quorum cannot be obtained,
by a majority vote of a committee of the Board designated by the Board, which
committee shall consist of two or more directors not parties to the proceeding;
except that directors who are parties to the proceeding may participate in the
designation of directors for the committee.
C. Determination by Body Other Than the Board of Directors. If the
-------------------------------------------------------
quorum cannot be obtained or the committee cannot be established under
Subsection 5(B), or even if a quorum is obtained or a committee designated if
such quorum or committee so directs, the determination required to be made by
Subsection 5(A) shall be made: (a) by independent legal counsel selected by a
vote of the Corporation's Board of Directors or the committee in the manner
specified in clause (a) or (b) of Subsection 5(B) or, if a quorum of the full
Board cannot be obtained and a committee cannot be established, by independent
legal counsel selected by a majority vote of the full Board; or (b) by the
shareholders.
D. Standard for Authorizing Indemnification. Authorization of
----------------------------------------
indemnification and evaluation as to reasonableness of expenses shall be made in
the same manner as the determination that indemnification is permissible is made
by independent legal counsel, authorization of indemnification and evaluation as
to reasonableness of expenses shall be made by the body that selected said
counsel.
6. Pre-Payment or Reimbursement of Expenses.
----------------------------------------
A. General. The Corporation shall pay for or reimburse the
-------
reasonable expenses incurred by an Indemnitee who is a Party to a Proceeding
because he is or was a Director or officer of the Corporation or any subsidiary
of the Corporation, in advance of the final disposition of the Proceeding if:
(a) the Indemnitee furnishes the Corporation a written affirmation of his good-
faith belief that he has met the standard of conduct described in clause (a) of
Subsection 2(A); (b) the Indemnitee furnishes the Corporation a written
undertaking, executed personally or on his behalf, to repay the advance if it is
determined that he did not meet such standard of conduct; and (c) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Section F.
B. Undertaking. The undertaking required by clause (b) of Subsection
-----------
6(A) shall be an unlimited general obligation of the Indemnitee, but need not be
secured and may be accepted without reference to financial ability to make
repayment.
-22-
C. Authorization of Pre-Payments. Determinations and authorizations
-----------------------------
of payments under this Section 6 shall be made in the manner specified in
Section 5 of this Article VIII.
7. Expenses Incurred as a Witness. The Corporation shall pay or
------------------------------
reimburse Expenses incurred by an Indemnitee in connection with his appearance,
or preparation for his appearance, as a witness in a Proceeding or at a
deposition related to a Proceeding, at a time when he has not been made a named
defendant or respondent in the Proceeding. If the Indemnitee is not an officer
or Director of the Company at the time his appearance is required at a
Proceeding or deposition related to a Proceeding, the Company shall pay the
Indemnitee $500.00 for each day (or part thereof) that the Indemnitee is
required to attend such Proceeding or deposition.
8. Employees and Agents. Unless limited by these Bylaws:
--------------------
A. Indemnification and Advancement of Expenses. The Corporation may
-------------------------------------------
indemnify and advance expenses, pursuant to Sections 2, 3 and 6 of this Article
VIII to an employee or agent of the Corporation who is not an Indemnitee, in
defense of any Proceeding to which he was a Party by reason of his employment by
or relationship with the Corporation, to the same extent as an Indemnitee; and
B. Greater Rights of Indemnification Permitted. The Corporation may
-------------------------------------------
indemnify and advance expenses to an employee or agent of the Corporation who is
not an Indemnitee to a greater extent if consistent with law, these Bylaws, the
Articles of Amendment and Restatement of the Corporation, resolution of the
shareholders or directors, or in a contract.
9. 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 any subsidiary of the Corporation, or who, while a
Director, officer, employee, fiduciary or agent of the Corporation or any
subsidiary of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary or
agent of any other foreign or domestic corporation or of any partnership, joint
venture, trust, other enterprise or employee benefit plan against any liability
asserted against or incurred by him in any such capacity or arising out of his
Status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article VIII. Any such
insurance may be procured from any insurance company designated by the Board of
Directors of the Corporation, whether such insurance company is formed under the
laws of Colorado or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the Corporation has equity or any other
interest, through stock ownership or otherwise.
10. Report to Shareholders. Any indemnification of or advance of
----------------------
expenses to a Director in accordance with this Article VIII, if arising out of a
proceeding by or on be-
-23-
half of the Corporation, shall be reported in writing to the shareholders with
or before the notice of the next shareholders' meeting.
11. Governing Law. This Article VIII shall be governed by and
-------------
construed in accordance with Section 7-109-101 of the Colorado Business
Corporation Act, as amended from time to time.
12. Non-Exclusivity of Rights. The rights to indemnification and to
-------------------------
the advancement of expenses conferred in this Article VIII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Articles of Amendment and Restatement,
agreement, vote of shareholders or disinterested directors or otherwise. To the
extent that the rights to indemnification granted by these Bylaws are
inconsistent with those granted by the Corporation's Articles of Amendment and
Restatement, the provisions of these Articles of Amendment and Restatement shall
govern.
ARTICLE IX
Share Certificates and the Transfer of Shares
---------------------------------------------
1. Certificates Representing Shares. The shares may but need not be
--------------------------------
represented by certificates. Unless the Colorado Business Corporation Act or
another law expressly provides otherwise, the fact that the shares are not
represented by certificates shall have no effect on the rights and obligations
of shareholders of the Corporation. If the shares are represented by
certificates, such certificates shall be in a form approved by the Board of
Directors, consecutively numbered, and signed in the name of the Corporation by
the chairman or vice chairman of the Board of Directors or by the chief
executive officer, the president or a vice president and by the treasurer or an
assistant treasurer or by the secretary or an assistant secretary, and shall be
sealed with the seal of the Corporation or a facsimile thereof. Any or all of
the signatures upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or an employee of the Corporation. In case any officer who
has signed such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of its issue.
2. Shares Without Certificates. Unless the Articles of
---------------------------
Incorporation provide otherwise, the Board of Directors of the Corporation may
authorize the issuance of any of its classes of series, if any, of shares
without certificates. Such authorization shall not affect shares already
represented by certificates until they are surrendered to the Corporation.
Within a reasonable time after the issuance or transfer of shares without
certificates, the Corporation shall send to the shareholder a written statement
of the information required by the Colorado Business Corporation Act.
3. Issuance of Shares. Except as provided in the Articles of
------------------
Incorporation, the Board of Directors may authorize the issuance of shares for
consideration consisting of
-24-
any tangible, 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 nonassessable.
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 3, "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.
4. 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 may require. The
Board, in its discretion, may as a condition precedent to the issuance of a new
certificate require the owner to give the Corporation a bond in such form and
amount and with such surety as it may determine as indemnity against any claim
that may be made against the Corporation relating to the certificate allegedly
destroyed or lost.
5. 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 cancelled, new certificates issued to the
persons entitled to them, and the transaction recorded on the books of the
Corporation.
6. 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.
The Board of Directors may adopt by resolution a procedure whereby a
shareholder 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. Such resolution shall set forth: (i) the
classification of shareholder who may certify; (ii) the purpose or purposes for
which the certification may be made; (iii) the form of certification
-25-
and information to be contained therein; (iv) if the certification is with
respect to a record date or closing of the stock transfer books within which the
certification must be received by the Corporation; and (v) such other provision
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.
7. Stock Ledger. An appropriate stock journal and ledger shall be
------------
kept by the secretary or such registrars or transfer agents as the directors by
resolution may appoint in which all transfer agents as the directors by
resolution may appoint in which all transactions in the shares of stock of the
Corporation shall be recorded.
8. Notice of Restriction on Transfer. Notice of any restriction on
---------------------------------
the transfer of the stock of the Corporation shall be placed on each certificate
of stock issued.
ARTICLE X
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 in that
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of 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 the
State of Colorado or any company in which the Corporation has an equity interest
or any other interest, through stock ownership or otherwise.
ARTICLE XI
Seal and Fiscal Year
--------------------
1. Seal. The Corporation shall have a seal in the form impressed to
----
the left of this paragraph of the Bylaws.
-26-
2. Fiscal Year. The fiscal year of the Corporation shall be
-----------
determined by the Board of Directors. Said fiscal year may be changed from time
to time by the Board of Directors in its discretion.
ARTICLE XII
Dividends
---------
Dividends shall be declared and paid out of the net profits and
surplus of the Corporation as often and at such times as the Board of Directors
may determine, taking into account reserve, capital and other needs of the
Corporation. No unclaimed dividend shall bear interest against the Corporation.
Dividends of capital stock may also be declared when, in the judgment of the
Board of Directors, it is considered proper and in the interests of the
Corporation.
ARTICLE XIII
Amendments
----------
Subject to repeal or change by action of the shareholders, the Board
of Directors may amend, supplement or repeal these Bylaws or adopt new Bylaws,
and all such changes shall affect and be binding upon the holders of all shares
heretofore as well as hereafter authorized, subscribed for or offered.
ARTICLE XIV
Miscellaneous
-------------
1. Gender. Whenever required by the context, the singular shall
------
include the plural, the plural the singular, and one gender shall include all
genders.
2. 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.
3. Governing Law. These Bylaws shall be governed and construed in
-------------
accordance with the laws of the State of Colorado.
I, Gary M. Jacobs, as Secretary of Corporate Express, Inc., hereby
certify that the foregoing Amended and Restated Bylaws were adopted by the Board
of Directors of the Corporation effective as of ______________, 1999.
CORPORATE EXPRESS, INC.
-27-
By:/s/ Gary M. Jacobs
----------------------------------
Gary M. Jacobs, Secretary
-28-