Exhibit 3.11
BY-LAWS
OF
GILPIN VENTURES, INC.
A shareholder may apply to any court of competent jurisdiction in Colorado
to seek an order that a shareholder meeting be held: (i) if an annual meeting
was not held within six months after the end of the corporation's fiscal year or
fifteen months after its last annual meeting, whichever is earlier, or (ii) if
the shareholder participated in a proper call for a special meeting and notice
of the special meeting was not given within thirty days after the date the
demand was delivered to the corporation's secretary or the special meeting was
not held in accordance with the notice.
Article I.
Offices
The principal office of the corporation shall be located at 27657 Timber
Drive, Conifer, Colorado 80433.
The corporation may have such other offices, either within or outside
Colorado, as the board of directors may designate or as the business of the
corporation may require from time to time.
The registered office of the corporation required by the Colorado
Corporation Code to be maintained in Colorado may be, but need not be, identical
with the principal office if in Colorado, and the address of the registered
office may be changed from time to time by the board of directors.
Article II.
Shareholders
Section 1. Annual Meeting. The annual meeting of Shareholders shall be held
[Illegible], for the purpose of electing Directors and for the transaction of
such other business as may come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday in Colorado, such meeting shall be held
on the next succeeding business day. If the election of directors is not held on
the day designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the board of directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as it may
conveniently be
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held.
Section 2. Special Meetings. Special Meetings of the shareholders for any
purpose, unless otherwise prescribed by statute, may be called by the president
of by the board of directors, and shall be called by the president at the
request of the holders of not less than one-tenth of all the outstanding shares
of the corporation entitled to vote at the meeting.
Section 3. Place of Meeting. The board of directors may designate any
place, either within or outside Colorado, as the place for any annual meeting or
for any special meeting called by the board of directors. A waiver of notice
signed by all shareholders entitled to vote at a meeting may designate any
place, either within or outside Colorado, as the place for such meeting. If no
designation is made, or if a special meeting shall be called otherwise than by
the board, the place of meeting shall be the registered office of the
corporation in Colorado.
Section 4. Notice of Meeting. Written or printed notice stating the place,
day and hour of the meeting, and in the case of a special meeting or as
otherwise required by the Colorado Corporation Code, the purposes for which the
meeting is called, shall be delivered not less than ten nor more than fifty days
before the date of the meeting, except to the extent that a longer notice period
is required by the Colorado Corporation Code. Notice shall be delivered either
personally or by mail, by or at the direction of the president, or the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
If required by the persons or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporate expense. No notice need be sent
to any shareholder of record if three successive letters mailed to the last
known address of such shareholder have been returned as undeliverable until such
time as another address for such shareholder is provided to the corporation by
such shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time
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and place of such meeting are announced at the meeting at which the adjournment
is taken. 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 thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the meeting.
By attending a meeting, either in person or by proxy, a shareholder waives
objection to lack of notice or defective notice of the meeting unless the
shareholder, at the beginning of the meeting, objects to the holding of the
meeting or the transacting of business at the meeting. By attending the meeting,
the shareholder also waives any objection to consideration at the meeting of a
matter not within the purpose or purposes described in the meeting notice unless
the shareholder objects to considering the matter when it is presented.
Section 5. Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors may provide
that the stock transfer books shall be closed for any stated period not
exceeding fifty days. If the stock transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days
immediately preceding such meeting. In lieu of closing the stock transfer books,
the board of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than fifty
days, and, in the case of a meeting of shareholder, not less than ten days prior
to the date on which the particular action, requiring such determination of
shareholders, is to be taken. If the stock transfer books are not closed and no
record date is fixed for 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 directors declaring such dividend is
adopted, as the case 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 except where the
determination has been made through the closing of the stock transfer books and
the stated period
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of the closing has expired.
Section 6. Voting Lists. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each.
For a period of ten days prior to such meeting, this list shall be kept on file
at the principal office of the corporation, whether within or outside Colorado,
and shall be subject to inspection for any purpose germane to the meeting by any
person who is a holder of record of shares or of voting trust certificates
therefor at any time during usual business hours. 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
Section 7. Certification Procedure for Beneficial Owners. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation 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: (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 and the
information to be contained therein; (iv) if the certification is with respect
to a record date or closing of the stock transfer books, the time within which
the certification must be received by the corporation; and (v) such other
provisions with respect to the procedure that the board deems necessary or
desirable. Upon receipt by the corporation of a certificate complying with this
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 share specified in place of the shareholder making the
certification.
Section 8. Quorum and Manner of Acting. A majority of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of shareholders. If less than a majority
of the outstanding shares are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice,
for a period not to exceed 60 days at any one adjournment. At such adjourned
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meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than quorum.
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 of voting by
classes is required by law or the Articles of Incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder may vote
by proxy executed in writing by the shareholder or his duty authorized attorney
in fact. Such proxy shall be filed with the secretary of the corporation before
or at the time of the meeting. No proxy shall be valid after eleven months from
the date of its execution, unless otherwise provided in the proxy.
Section 10. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to one vote; except in the election of directors, and each
fractional share shall be entitled to a corresponding fractional vote; on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by the Articles of Incorporation as permitted by the Colorado Corporation
Code. Cumulative voting shall not be required in the election of directors. Each
record holder of stock shall be entitled to vote at such election having as many
votes for each of the shares owned by him as there are directors to be elected
and for whose election he has the right to vote.
Section 11. Voting of Shares by Certain Holders. Neither treasury shares,
nor shares of its own stock held by the corporation in a fiduciary capacity, nor
shares held by another corporation if a majority of the shares entitled to vote
for the election of directors of such other corporation is held by this
corporation shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time.
Redeemable shares which have been called for redemption shall not be
entitled to vote on and after the date on which written notice of redemption has
been mailed to shareholders and a sum sufficient to redeem such shares has been
deposited with a bank or trust company with irrevocable instruction and
authority to pay the redemption price to the holders of the shares upon
surrender of certificates therefor.
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Shares standing in the name of another corporation may be voted by such
officer, agent, or proxy as the bylaws of such corporation may prescribe or, in
the absence of such provision, as the board of directors of such corporation may
determine.
Shares entitled to vote and held by a personal representative, custodian,
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 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 he is authorized to vote the shares in an appropriate order of
the court by which the receiver was appointed. Unless the secretary of the
corporation is given written notice of alternate voting provisions and is
furnished with a copy of the instrument or order wherein the alternate voting
provisions are stated, if shares of other securities having voting power are
held of record in the name 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: (1) if only one person votes, his vote binds all; (2) if two
or more persons vote, the act of the majority in interest so voting binds all;
or (3) if two or more persons vote, but the vote is evenly split on any
particular matter, each faction may vote the securities 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 so 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 of
even split for the purpose of this item (3) of this subparagraph shall be a
majority or even split in interest. All other shares may be voted only by the
record holder thereof, except as may be otherwise required by the laws of
Colorado.
Section 12. Informal Action by Shareholders. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if a consent (or counterparts thereof) in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled to vote
with respect to the subject matter thereof and delivered to the secretary of the
corporation for inclusion in the minutes or for filing with the corporate
records. Such sent shall have the same force and effect as a unanimous vote of
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the shareholders, and may be stated as such in any document. Action taken under
this Section is effective when all shareholders entitled to vote have signed the
consent, unless the consent specifies a different effective date. The record
date for determining shareholders entitled to take action without a meeting is
the date the first shareholder signs the consent.
Article III
Board of Directors
Section 1. General Powers. The business and affairs of the corporation
shall be managed by its board of directors, except as otherwise provided in the
Colorado Corporation Code or the Articles of Incorporation.
Section 2. Number, Tenure and Qualifications. The number of directors of
the corporation shall be three.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders and
thereafter until his successor shall have been elected and qualified. Directors
need not be residents of Colorado or shareholders of the corporation. Directors
shall be removed in the manner provided by the Colorado Corporation Code.
Section 3. Vacancies. Any director may resign at any time by given written
notice to the president or to the secretary of the corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any vacancy occurring in the board of directors may be filled by the
affirmative vote of a majority of the remaining directors though less than a
quorum. 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 at a special meeting of the shareholders called for that purpose, and a
director so chosen shall hold office for the term specified in Section 2 above.
Section 4. Regular Meetings. A regular meeting of the board of directors
shall be held without other notice than this bylaw immediately after and at the
same place as the annual meeting of shareholders. The board of directors may
provide by resolution the time and place, either within or outside Colorado, for
the holding of additional regular
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meetings without other notice than such resolution.
Section 5. Special Meetings. Special Meetings of the board of directors may
be called by or at the request of the president or any two directors. The person
or persons authorized to call special meetings of the board of directors may fix
any place, either within or outside Colorado, as the place for holding any
special meeting of the board of directors called by them.
Section 6. Notice. Notice of any special meeting shall be given at least
seven days prior to the meeting by written notice delivered personally or mailed
to each director at his business address, or by notice given at least two days
prior to the meeting by telegraph, telex, telecopier, or other similar device.
If mailed, such notice shall be deemed to be delivered three days after such
notice is deposited in the United States mail so addressed, with postage thereon
prepaid. If notice is given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. A director
waives notice of a regular or special meeting by attending or participating in
the meeting unless, at the beginning of the meeting, he objects to the holding
of the meeting or the transaction of business at the meeting. Neither the
business to be transacted at, nor the purpose of any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
Section 7. Quorum. A majority of the number of directors fixed by Section 2
shall constitute a quorum for the transaction of business at any meeting of the
board of directors, but if less than such majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice, for a period not to exceed 60 days at any one
adjournment.
Section 8. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
Section 9. 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.
Section 10. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of
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directors or committee of the board at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless (i) he
objects at the beginning of the meeting to the holding of the meeting or the
transaction of business at the meeting; (ii) he contemporaneously requests that
his dissent be entered in the minutes of the meeting; or (iii) he gives written
notice of his dissent to the presiding officer of the meeting before its
adjournment or delivers such dissent by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. A director may
dissent to a specific action at a meeting, while assenting to others. The right
to dissent to a specific action taken at a meeting of the board of directors or
a committee of the board shall not be available to a director who voted in favor
of such action.
Section 11. Committees. The board of directors, by resolution adopted by a
majority of the full board of directors, may designate from among its members an
executive committee and one or more other committees, each of which, to the
extent provided in the resolution, shall have all the authority of the board of
directors, except that no such committee shall have the authority to: (i)
declare dividends or distributions; (ii) approve or recommend to shareholders
actions or proposals required by the Colorado Corporation Code to be approved by
shareholders; (iii) fill vacancies on the board of directors or any committee
thereof; (iv) amend the bylaws; (v) approve a plan of merger not requiring
shareholder approval; (vi) reduce earned or capital surplus; (vii) 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 provided that the board of
directors, having acted regarding general authorization for the issuance or sale
of shares or any contract therefore and, in the case of a series, the
designation thereof, may, pursuant to a general formula or method specified by
the board by resolution or by adoption of a stock option or other plan,
authorize a committee to fix the terms of any contract for the sale of the
shares and to fix the terms upon which such shares may be issued or sold,
including, without limitation, the price, the dividend rate, provisions for
redemption, sinking fund, conversion, or voting or preferential rights, and
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 under the Colorado Corporation Code.
Neither the designation of any committee, the delegation of authority to
such committee, nor any action by such committee pursuant to its authority shall
alone constitute
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compliance by any member of the board of directors, nor a member of the
committee in question, with his responsibility to conform to the standard of
care set forth in Article III, Section 14 of these bylaws.
Section 12. Informal Action by Directors. Any action required or permitted
to be taken at a meeting of the directors or any committee designated by the
board of directors may be taken without a meeting if a consent (or counterparts
thereof) in writing, setting forth the action so taken, shall be signed by all
of the directors entitled to vote with respect to the subject matter thereof and
delivered to the secretary of the corporation for inclusion in the minutes or
for filing with the corporate records. Such consent shall have the same force
and effect as a unanimous vote of the directors or committee members, and may be
stated as such in any document. Action taken under this Section is effective
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date.
Section 13. Telephonic meetings. One or more members of the board of
directors or any committee designated by the board may participate in a meeting
of the board of directors or a committee thereof by means of conference
telephone or similar communications equipment by which all persons participating
in the meeting can hear one another at the same time. Such participation shall
constitute presence in person at the meeting.
Section 14. Standard of Care. 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, should use under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated; but he shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance to be
unwarranted. A person who so performs his duties shall not have any liability by
reason of being or having been a director of the corporation.
The designated person or whom a director is entitled to rely are: (1) one
or more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented; (2) counsel,
public accountants, or other persons as to matters which the
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director reasonably believes to be within such persons' professional or expert
competence; or (3) a committee of the board upon which the director does not
serve, duly designated in accordance with Article III, section 11 of these
bylaws, as to matters within its designated authority, which committee the
director reasonably believes to merit confidence.
Article IV
Officers and Agents
Section l. General. The officers of the corporation shall be a president,
one or more vice presidents, a secretary and a treasurer. The board of directors
may appoint such other officers, assistant officers, committees and agents,
including a chairman of the board, assistant secretaries and assistant
treasurers, as they may consider necessary, who shall be chosen in such manner
and hold their offices for such terms and have such authority and duties as from
time to time may be determined by the board of directors. The salaries of all
the officers of the corporation shall be fixed by the board of directors. One
person may hold more than one office, except that no person may simultaneously
hold the offices of president and secretary. In all cases where the duties of
any officer, 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 president.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected by the board of directors annually at the first meeting of the
board held after each annual meeting of the shareholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until the
first of the following occurs: until his successor shall have been duly elected
and qualified; or until his death; or until he shall resign; or until he shall
have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent may be removed by the board of
directors or by the executive committee whenever in its judgment the best
interests of the corporation, will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not in itself create
contract rights.
Section 4. Vacancies. A vacancy in any office, however, occurring, may be
filled by the board of directors
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for the unexpired portion of the term.
Section 5. President. Subject to the direction and supervision of the board
of directors, the president shall be the chief executive officer of the
corporation and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. Unless
otherwise directed by the board of directors, the president shall 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 stockholders of any other corporation in
which the corporation holds 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 president, in person or by substitute or 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 president shall have
custody of the treasurer's bond, if any.
Section 6. Vice Presidents. The vice presidents shall assist the president
and shall perform such duties as may be assigned to them by the president or by
the board of directors. In the absence of the president, the vice president, if
any (or, if there be more than one, the vice presidents in the order designated
by the board of directors, or if the board makes no such designation, then the
vice president designated by the president, or if neither the board nor the
president makes any such designation, the senior vice president (as determined
by first-election to that office) shall have the powers and perform the duties
of the president.
Section 7. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the shareholders, executive committee and the board of directors;
(b) see that all notices are duly given in accordance with the provisions of
these bylaws or as required by law; (c) be custodian of the corporate records
and of the seal of the corporation and affix the seal to all documents when
authorized by the board of directors; (d) keep at its registered office or
principal place of business within or outside Colorado a record containing the
names and addresses of all shareholders and the number and class of shares held
by each, unless such a record shall be kept at the office of the corporation's
transfer agent or registrar; (e) sign with the president, or a vice president,
certificates for shares of the corporation,
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the issuance of which shall have been authorized by resolution of the board of
directors; (f) have general charge of the stock transfer books of the
corporation, unless the corporation has a transfer agent; and (g) in general,
perform all duties incident to the office of secretary and such other duties as
from time to time may be assigned to him by the president or by the board of
directors. Assistant secretaries, if any, shall have the same duties and powers,
subject to supervision by the secretary. The directors and/or shareholders may
however respectively designate a person other than the secretary or assistant
secretary to keep the minutes of their respective meetings.
Any books, records, or minutes of the corporation may be in written form or
in any form capable of being converted into written form within a reasonable
time.
Section 8. Treasurer. The treasurer shall be the principal financial
officer of the corporation, shall have the care and custody of all funds,
securities, evidences of indebtedness and other personal property of the
corporation and shall deposit the same in accordance with the instructions of
the board of directors. He shall receive and give receipts and acquittances for
money paid in on account of the corporation, and shall pay out of the funds on
hand all bills, payrolls and other just debts of the corporation of whatever
nature upon maturity. He shall perform all other duties incident to the office
of the treasurer and, upon request of the board, shall make such reports to it
as may be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of directors or the
president. The assistant treasurers, if any, shall have the same powers and
duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account, prepare
and file all local, state and federal tax returns, prescribe and maintain an
adequate system of internal audit, and prepare and furnish to the president and
the board of directors statements of account showing the financial position of
the corporation and the results of its operations.
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Article V
Stock
Section 1. Certificates. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively number
certificates signed in the name of the corporation by the chairman or vice-
chairman of the board of directors or by 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 with a
facsimile thereof. Any or all of the signatures on such certificates may also be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, both of which may be the corporation or an employee
of the corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificates 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.
Certificates of stock shall be in such form and shall contain such information
consistent with law as shall be prescribed by the board of directors. No
certificate shall be issued until the shares represented thereby are fully paid.
If shares are not represented by certificates, within a reasonable time
following the issue or transfer of such shares, the corporation shall send the
shareholder a complete written statement of all of the information required to
be placed on certificates by the Colorado Corporation Code.
Section 2. Consideration for Shares. Shares shall be issued for such
consideration, expressed in dollars (but not less than the par value thereof) as
shall be fixed from time to time by the board of directors. Such consideration
may consist in whole or in part of money, other property, tangible or
intangible, or in labor or services actually performed for the corporation.
Neither the promissory note of a subscriber or direct purchaser of shares from
the corporation nor the unsecured or nonnegotiable promissory note of any other
person shall constitute payment or part payment for shares of the corporation.
Treasury shares shall be disposed of for such consideration expressed in
dollars as may be fixed from time to time by the board.
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Section 3. Lost Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as it may prescribe. The board of directors may in its
discretion require a bond in such form and amount and with such surety as it may
determine before issuing a new certificate.
Section 4. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer and receipt of (i) such documentary stamps as may be required by law,
and (ii) evidence of compliance with all applicable securities laws and other
restrictions, it shall be the duty of the corporation issue a new certificate to
the person entitled thereto, and cancel the old certificate. Every such transfer
of stock shall be entered on the stock books of the corporation which shall be
kept at its principal office, or by its registrar duly appointed.
Except as provided in Article II, Sections 7 and 11 of these bylaws, 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.
Section 5. Transfer Agent, Registrars, and Paying Agents. The board may at
its discretion appoint one or more transfer agents, registrars and agents for
making payment upon any class of stock, bond, debenture, or other security of
the corporation. Such agents and registrars may be located either within or
outside Colorado. They shall have such rights and duties and shall be entitled
to such compensation as may be agreed.
Article VI
Indemnification of Certain Persons
Section 1. Authority for Indemnification. Any person who was or is a part
or is threatened to be made a party to
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any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the fact that he is or was a director, officer, employee,
fiduciary or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of any
foreign or domestic corporation or of any partnership joint venture, trust,
other enterprises or employee benefit plan ("Any Proper Person"), shall be
indemnified by the corporation against expenses (including attorneys' fees),
judgments, penalties, fines, (including an excise tax assessed with respect to
any employee benefit plan) and, amounts paid in settlement reasonably incurred
by him in connection with such action, suit or proceeding if it is determined by
the groups set forth in Section 4 of this Article that he conducted himself in
good faith and that he (1) reasonably believed, in the case of conduct in his
official capacity with the corporation, that his conduct was in the
corporation's best interests, or (2) in all other cases (except criminal cases)
believed that his conduct was at least not opposed to the corporation's best
interests, or (3) with respect to criminal proceedings had no reasonable cause
to believe his conduct was unlawful. A person will be deemed to be acting in his
official capacity while acting as a director, officer, employee or agent of this
corporation and, not when he is acting on this corporation's behalf for some
other entity. No indemnification shall be made under this Section to a director
with respect to any claim, issue or matter in connection with a proceeding by or
in the) right of a corporation in which the director was adjudged 1iable to the
corporation or in connection with any proceeding charging improper personal
benefit to the director, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that personal benefits
was improperly received by him. Further, indemnification under this Section in
connection with a proceeding, brought by or in the right of the corporation
shall be limited to reasonable expenses, including attorneys' fees, incurred in
connection with the proceeding. These limitations shall apply to directors only
and not to officers, employees, fiduciaries or agents of the corporation.
Section 2. Right to Indemnification. The corporation shall indemnify any
Proper Person who has been wholly successful on the merits or otherwise, in
defense of any action, suit, or proceeding referred to in Section 1 of this
Article against expenses (including attorneys' fees) reasonably incurred by him
in connection with the proceeding without the necessity of any action by the
corporation other than the determination in good faith that the defense has been
wholly successful.
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Section 3. Effect of Termination of Action. The termination of any action,
suit or proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent shall not of itself create a presumption
that the person seeking indemnification did not meet the standards of conduct
described in Section 1 of this Article. Entry of a judgment by consent as part
of a settlement shall not be deemed an adjudication of liability.
Section 4. Groups Authorized to Make Indemnification Determination. In all
cases except where there is a right to indemnification as set forth in Section 2
of this Article or where indemnification is ordered by a court, any
indemnification shall be made by the corporation only as authorized in the
specific case upon a determination by a proper group that indemnification of the
Proper Person is permissible under the circumstances because he has met the
applicable standards of conduct set forth in Section 1 of this Article. This
determination shall be made by the board of directors by a majority vote of a
quorum, which quorum shall consist of directors not parties to the proceeding
("Quorum"). If a Quorum cannot be obtained, the determination shall be made by a
majority vote of a committee of the board of directors 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. If a Quorum of
the board of directors cannot be obtained or the committee cannot be
established, or even if a Quorum can be obtained or the committee can be
established but such Quorum or committee so directs, the determination shall be
made by independent legal counsel selected by a vote of a Quorum of the board of
directors or a committee in the manner specified in this Section or, if a Quorum
of the full board of directors cannot be obtained and a committee cannot be
established, by independent legal counsel selected by a majority vote of the
full board (including directors who are parties to the action) or by a vote of
the shareholders.
Section 5. Court Ordered Indemnification. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If the court determines that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he met the standards of conduct set forth in
Section 1 of this Article or was adjudged liable in the proceeding, the court
may order such indemnification
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as the court deems proper except that if the individual has been adjudged
liable, indemnification shall be limited to reasonable expenses incurred.
Section 6. Advance of Expenses. Expenses (including attorneys' fees)
incurred in defending a civil or criminal action, suit or proceeding may be paid
by the corporation to any Proper Person in advance of the final disposition of
such action, suit or proceeding upon receipt of (1) a written affirmation of
such Proper Person's good faith belief that he has met the standards of conduct
prescribed by Section 1 of this Article; (2) a written undertaking, executed
personally or on his behalf, to repay such advances if it is ultimately
determined that he did not meet the prescribed standards of conduct (the
undertaking shall be an unlimited general obligation of the Proper Person but
need not be secured and may be accepted without reference to financial ability
to make repayment); and (3) a determination is made by the proper group (as
described in Section 4 of this Article), that the facts as then known to the
group would not preclude indemnification.
Section 7. Report to Shareholders. Any indemnification of or advance of
expenses to a director in accordance with this Article, it arising out of a
proceeding by or on behalf of the corporation, shall be reported in, writing to
the shareholders with or before the notice of the next shareholders' meeting.
Article VII
Provision of 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,
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 Article VI or applicable law.
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Article VIII
Miscellaneous
Section 1. Waiver of Notice. Whenever notice is required by law, by the
Articles of Incorporation or by these bylaws, a waiver thereof in writing signed
by the director, shareholder or other person entitled to said notice, whether
before, at or after the time stated therein, shall be equivalent to such notice.
Section 2. Seal. The corporate seal of the corporation shall be circular
in form and shall contain the name of the corporation and the words, "Seal,
Colorado".
Section 3. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
Section 4. Amendments. The board of directors shall have the power to make,
amend and repeal the bylaws of the corporation at any regular or special meeting
of the board unless the shareholders, in making, in amending or repealing a
particular bylaw, provide expressly that the directors may not amend or repeal
such bylaw. The shareholders also shall have the power to make, amend or repeal
the bylaws of the corporation at any annual meeting or at any special meeting
called for that purpose.
Section 5. Gender. The masculine gender is used in these bylaws as a matter
of convenience only and shall be interpreted to include the female and neuter
genders as the circumstances indicate.
Section 6. Conflicts. In the event of any irreconcilable conflict between
these bylaws and either the corporation's Articles of Incorporation or
applicable law, the latter shall control.
Section 7. Definitions. Except as otherwise specifically provided in these
bylaws, all terms used in these bylaws shall have the same definition as in the
Colorado Corporation Code.
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