Exhibit 3.02
AMENDED AND RESTATED BYLAWS
OF
LIFELINE THERAPUTICS CORPORATION
Article I
SHAREHOLDERS
1. ANNUAL SHAREHOLDERS' MEETING. The annual shareholders' meeting shall be
held on the date and at the time and place fixed from time to time by the board
of directors.
2. SPECIAL SHAREHOLDERS' MEETING. A special shareholders' meeting for any
purpose or purposes, may be called by the board of directors or the president.
The Corporation shall also hold a special shareholders' meeting in the event it
receives, in the manner specified in Article VII, Section 3, one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by the holders of shares representing not less than
one-tenth of all of the votes entitled to be cast on any issue at the meeting.
Special meetings shall be held at the principal office of the Corporation or at
such other place as the board of directors or the president may determine.
3. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders (1) entitled to
notice of or to vote at any shareholders' meeting or at any adjournment of
a shareholders' meeting, (2) entitled to demand a special shareholders'
meeting, (3) entitled to take any other action, (4) entitled to receive
payment of a share dividend or a distribution, or (5) for any other
purpose, the board of directors may fix a future date as the record date
for such determination of shareholders. The record date may be fixed not
more than seventy days before the date of the proposed action.
(b) Unless otherwise specified when the record date is fixed, the time
of day for determination of shareholders shall be as of the Corporation's
close of business on the record date.
(c) A determination of shareholders entitled to be given notice of or
to vote at a shareholders' meeting is effective for any adjournment of the
meeting unless the board of directors fixes a new record date, which the
board shall do if the meeting is adjourned to a date more than one hundred
twenty days after the date fixed for the original meeting.
(d) If no record date is otherwise fixed, the record date for
determining shareholders entitled to be given notice of and to vote at an
annual or special shareholders' meeting is the day before the first notice
is given to shareholders.
(e) The record date for determining shareholders entitled to take
action without a meeting pursuant to Article I, Section 10 is the date a
writing upon which the action is taken is first received by the
Corporation.
4. VOTING LIST.
(a) After a record date is fixed for a shareholders' meeting, the
secretary shall prepare a list of the names of all its shareholders who are
entitled to be given notice of the meeting. The list shall be arranged by
voting groups and within each voting group by class or series of shares,
shall be alphabetical within each class or series, and shall show the
address of, and the number of shares of each such class and series that are
held by, each shareholder.
(b) The shareholders' list shall be available for inspection by any
shareholder, beginning the earlier of ten days before the meeting for which
the list was prepared or two business days after notice of the meeting is
given and continuing through the meeting, and any adjournment thereof, at
the Corporation's principal office or at a place identified in the notice
of the meeting in the city where the meeting will be held.
(c) The secretary shall make the shareholders' list available at the
meeting, and any shareholder or agent or attorney of a shareholder is
entitled to inspect the list at any time during the meeting or any
adjournment.
5. NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders of the date, time,
and place of each annual and special shareholders' meeting no fewer than
ten nor more than sixty days before the date of the meeting; except that,
if the articles of incorporation are to be amended to increase the number
of authorized shares, at least thirty days' notice shall be given. Except
as otherwise required by the Colorado Business Corporation Act, the
secretary shall be required to give such notice only to shareholders
entitled to vote at the meeting.
(b) Notice of an annual shareholders' meeting need not include a
description of the purpose or purposes for which the meeting is called
unless a purpose of the meeting is to consider an amendment to the articles
of incorporation, a restatement of the articles of incorporation, a plan of
merger or share exchange, disposition of substantially all of the property
of the Corporation, consent by the Corporation to the disposition of
property by another entity, or dissolution of the Corporation.
(c) Notice of a special shareholders' meeting shall include a
description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders' meeting shall be in writing and shall be
given
(1) by deposit in the United States mail, properly addressed to
the shareholder's address shown in the Corporation's current record of
shareholders, first class postage prepaid, and, if so given, shall be
effective when mailed; or
(2) by telegraph, teletype, electronically transmitted facsimile,
electronic mail, mail, or private carrier or by personal delivery to
the shareholder, and, if so given, shall be effective when actually
received by the shareholder.
(e) If an annual or special shareholders' meeting is adjourned to a
different date, time, or place, notice need not be given of the new date,
time, or place if the new date, time, or place is announced at the meeting
before adjournment; provided, however, that, if a new record date for the
adjourned meeting is fixed pursuant to Article I, Section 3(c), notice of
the adjourned meeting shall be given to persons who are shareholders as of
the new record date.
(f) If three successive notices are given by the Corporation, whether
with respect to a shareholders' meeting or otherwise, to a shareholder and
are returned as undeliverable, no further notices to such shareholder shall
be necessary until another address for the shareholder is made known to the
Corporation.
6. QUORUM. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. One-third of the votes entitled to be cast on the matter
by the voting group shall constitute a quorum of that voting group for action on
the matter. If a quorum does not exist with respect to any voting group, the
president or any shareholder or proxy that is present at the meeting, whether or
not a member of that voting group, may adjourn the meeting to a different date,
time, or place, and (subject to the next sentence) notice need not be given of
the new date, time, or place if the new date, time, or place is announced at the
meeting before adjournment. If a new record date for the adjourned meeting is or
must be fixed pursuant to Article I, Section 3(c), notice of the adjourned
meeting shall be given pursuant to Article I, Section 5 to persons who are
shareholders as of the new record date. At any adjourned meeting at which a
quorum exists, any matter may be acted upon that could have been acted upon at
the meeting originally called; provided, however, that, if new notice is given
of the adjourned meeting, then such notice shall state the purpose or purposes
of the adjourned meeting sufficiently to permit action on such matters. Once a
share is represented for any purpose at a meeting, including the purpose of
determining that a quorum exists, it is deemed present for quorum purposes for
the remainder of the meeting and for any adjournment of that meeting unless a
new record date is or shall be set for that adjourned meeting.
7. VOTING ENTITLEMENT OF SHARES. Except as stated in the articles of
incorporation, each outstanding share, regardless of class, is entitled to one
vote, and each fractional share is entitled to a corresponding fractional vote,
on each matter voted on at a shareholders' meeting.
8. PROXIES; ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the Corporation
until the appointment is received by the Corporation. An appointment is
valid for eleven months unless a different period is expressly provided in
the appointment form.
(c) The Corporation may accept or reject any appointment of a proxy,
revocation of appointment of a proxy, vote, consent, waiver, or other
writing purportedly signed by or for a shareholder, if such acceptance or
rejection is in accordance with the provisions of the Colorado Business
Corporation Act.
9. WAIVER OF NOTICE.
(a) A shareholder may waive any notice required by the Colorado
Business Corporation Act, the articles of incorporation or these bylaws,
whether before or after the date or time stated in the notice as the date
or time when any action will occur or has occurred. The waiver shall be in
writing, be signed by the shareholder entitled to the notice, and be
delivered to the Corporation for inclusion in the minutes or filing with
the corporate records, but such delivery and filing shall not be conditions
of the effectiveness of the waiver.
(b) A shareholder's attendance at a meeting waives objection to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting
business at the meeting because of lack of notice or defective notice, and
waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it is
presented.
10. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required or
permitted to be taken at a shareholders' meeting may be taken without a meeting
if all of the shareholders entitled to vote thereon consent to such action in
writing. Action taken pursuant to this section shall be effective when the
Corporation has received writings that describe and consent to the action,
signed by all of the shareholders entitled to vote thereon. Action taken
pursuant to this section shall be effective as of the date the last writing
necessary to effect the action is received by the Corporation, unless all of the
writings necessary to effect the action specify another date, which may be
before or after the date the writings are received by the Corporation. Such
action shall have the same effect as action taken at a meeting of shareholders
and may be described as such in any document. Any shareholder who has signed a
writing describing and consenting to action taken pursuant to this section may
revoke such consent by a writing signed by the shareholder describing the action
and stating that the shareholder's prior consent thereto is revoked, if such
writing is received by the Corporation before the effectiveness of the action.
11. MEETINGS BY TELECOMMUNICATIONS. To the extent provided by resolution of
the Board of Directors or in the notice of the meeting, any or all of the
shareholders may participate in an annual or special shareholders' meeting by,
or the meeting may be conducted through the use of, any means of communication
by which all persons participating in the meeting may hear each other during the
meeting. A shareholder participating in a meeting by this means is deemed to be
present in person at the meeting.
Article II
DIRECTORS
1. AUTHORITY OF THE BOARD OF DIRECTORS. The corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a board of directors.
2. NUMBER. Subject to the provisions of the Articles of Incorporation, the
number of directors shall be fixed by resolution of the board of directors from
time to time and may be increased or decreased by resolution adopted by the
board of directors from time to time, but no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director.
3. QUALIFICATION. Directors shall be natural persons at least eighteen
years old but need not be residents of the State of Colorado or shareholders of
the Corporation.
4. ELECTION. The board of directors shall be elected at the annual meeting
of the shareholders or at a special meeting called for that purpose.
5. TERM. Each director shall be elected to hold office until the next
annual meeting of shareholders and until the director's successor is elected and
qualified unless the directors are appointed to staggered terms as provided in
the Articles of Incorporation. In such case, the terms of the directors shall
expire as set forth in the Articles of Incorporation
6. RESIGNATION. A director may resign at any time by giving written notice
of his or her resignation to any other director or (if the director is not also
the secretary) to the secretary. The resignation shall be effective when it is
received by the other director or secretary, as the case may be, unless the
notice of resignation specifies a later effective date. Acceptance of such
resignation shall not be necessary to make it effective unless the notice so
provides.
7. REMOVAL. Any director may be removed by the shareholders of the voting
group that elected the director, with or without cause at a meeting called for
that purpose. The notice of the meeting shall state that the purpose, or one of
the purposes, of the meeting is removal of the director. A director may be
removed only if the number of votes cast in favor of removal exceeds the number
of votes cast against removal.
8. VACANCIES.
(a) If a vacancy occurs on the board of directors, including a vacancy
resulting from an increase in the number of directors:
(1) The shareholders may fill the vacancy at the next annual
meeting or at a special meeting called for that purpose; or
(2) The board of directors may fill the vacancy; or
(3) If the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative vote
of a majority of all the directors remaining in office.
(b) Notwithstanding Article II, Section 8(a), if the vacant office was
held by a director elected by a voting group of shareholders, then, if one
or more of the remaining directors were elected by the same voting group,
only such directors are entitled to vote to fill the vacancy if it is
filled by directors, and they may do so by the affirmative vote of a
majority of such directors remaining in office; and only the holders of
shares of that voting group are entitled to vote to fill the vacancy if it
is filled by the shareholders.
(c) A vacancy that will occur at a specific later date, by reason of a
resignation that will become effective at a later date under Article II,
Section 6 or otherwise, may be filled before the vacancy occurs, but the
new director may not take office until the vacancy occurs.
9. MEETINGS. The board of directors may hold regular or special
meetings in or out of Colorado. A regular meeting shall be held in the
principal office of the Corporation on such date or dates, and at such
time, as may be established by resolution of the board of directors. If the
board shall establish a date and time for a regular meeting of the board, such
meeting may be held without notice of the date, time, place, or purpose of the
meeting The board of directors may, by resolution, establish other dates, times
and places for additional regular meetings, which may thereafter be held without
further notice. Special meetings may be called by the president or by any two
directors and shall be held at the principal office of the Corporation unless
another place is consented to by every director. At any time when the board
consists of a single director, that director may act at any time, date, or place
without notice.
10. NOTICE OF SPECIAL MEETING. Notice of a special meeting shall be given
to every director at least twenty four hours before the time of the meeting,
stating the date, time, and place of the meeting. The notice need not describe
the purpose of the meeting. Notice may be given orally to the director,
personally or by telephone or other wire or wireless communication. Notice may
also be given in writing by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier. Notice shall be effective
at the earliest of the time it is received; five days after it is deposited in
the United States mail, properly addressed to the last address for the director
shown on the records of the Corporation, first class postage prepaid; or the
date shown on the return receipt if mailed by registered or certified mail,
return receipt requested, postage prepaid, in the United States mail and if the
return receipt is signed by the director to which the notice is addressed.
11. QUORUM. Except as provided in Article II, Section 8, a majority of the
number of directors fixed in accordance with these Bylaws shall constitute a
quorum for the transaction of business at all meetings of the board of
directors. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
otherwise specifically required by law.
12. WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting before or after the
time and date of the meeting stated in the notice. Except as provided by
Article II, Section 12(b), the waiver shall be in writing and shall be
signed by the director. Such waiver shall be delivered to the secretary for
filing with the corporate records, but such delivery and filing shall not
be conditions of the effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting waives
any required notice to him or her of the meeting unless, at the beginning
of the meeting or promptly upon his or her later arrival, the director
objects to holding the meeting or transacting business at the meeting
because of lack of notice or defective notice and does not thereafter vote
for or assent to action taken at the meeting.
13. ATTENDANCE BY TELEPHONE. One or more directors may participate in a
regular or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may hear each other
during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
14. DEEMED ASSENT TO ACTION. A director who is present at a meeting of the
board of directors when corporate action is taken shall be deemed to have
assented to all action taken at the meeting unless:
(1) The director objects at the beginning of the meeting, or
promptly upon his or her arrival, to holding the meeting or
transacting business at the meeting and does not thereafter vote for
or assent to any action taken at the meeting;
(2) The director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in
the minutes of the meeting; or
(3) The director causes written notice of his or her dissent or
abstention as to any specific action to be received by the presiding
officer of the meeting before adjournment of the meeting or by the
secretary (or, if the director is the secretary, by another director)
promptly after adjournment of the meeting.
The right of dissent or abstention pursuant to this Article II, Section 14 as to
a specific action is not available to a director who votes in favor of the
action taken.
15. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or permitted
by law to be taken at a board of directors' meeting may be taken without a
meeting if all members of the board consent to such action in writing. Action
shall be deemed to have been so taken by the board at the time the last director
signs a writing describing the action taken, unless, before such time, any
director has revoked his or her consent by a writing signed by the director and
received by the secretary or any other person authorized by the bylaws or the
board of directors to receive such a revocation. Such action shall be effective
at the time and date it is so taken unless the directors establish a different
effective time or date. Such action has the same effect as action taken at a
meeting of directors and may be described as such in any document.
16. NOMINATIONS OF DIRECTORS.
(a) The Board of Directors may nominate persons to stand for election
to the board of directors at any time prior to a meeting of shareholders at
which directors are to be elected.
(b) Any shareholder may nominate a person to stand for election to the
Board of Directors provided such shareholder provides written notification
of the intention to nominate such persons at the next shareholder meeting
not less than 90 days in advance of such meeting, and provided further such
notice is accompanied by information regarding the proposed nominee meeting
the requirements of part III of SEC Regulation SB or Regulation SK and
information regarding all direct and indirect business or personal
relationships between the shareholder and the proposed nominee.
Article III
COMMITTEES OF THE BOARD OF DIRECTORS
1. COMMITTEES OF THE BOARD OF DIRECTORS.
(a) Subject to the provisions of the Colorado Business Corporation
Act, the board of directors may create one or more committees and appoint
one or more members of the board of directors to serve on them. The
creation of a committee and appointment of members to it shall require the
approval of a majority of all the directors in office when the action is
taken, whether or not those directors constitute a quorum of the board.
(b) The provisions of these bylaws governing meetings, action without
meeting, notice, waiver of notice, and quorum and voting requirements of
the board of directors apply to committees and their members as well.
(c) To the extent specified by resolution adopted from time to time by
a majority of all the directors in office when the resolution is adopted,
whether or not those directors constitute a quorum of the board, each
committee shall exercise the authority of the board of directors with
respect to the corporate powers and the management of the business and
affairs of the Corporation; except that a committee shall not:
(1) Authorize distributions;
(2) Approve or propose to shareholders action that the Colorado
Business Corporation Act requires to be approved by shareholders;
(3) Fill vacancies on the board of directors or on any of its
committees;
(4) Amend the articles of incorporation pursuant to the Colorado
Business Corporation Act;
(5) Adopt, amend, or repeal bylaws;
(6) Approve a plan of merger not requiring shareholder approval;
(7) Authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of directors;
or
(8) Authorize or approve the issuance or sale of shares, or a
contract for the sale of shares, or determine the designation and
relative rights, preferences, and limitations of a class or series of
shares; except that the board of directors may authorize a committee
or an officer to do so within limits specifically prescribed by the
board of directors.
(d) The creation of, delegation of authority to, or action by, a
committee does not alone constitute compliance by a director with
applicable standards of conduct.
Article IV
OFFICERS
1. GENERAL.
(a) The Corporation shall have as officers a president and a
secretary, each of whom who shall be appointed by the board of directors.
The board of directors may appoint as additional officers a chairman and
other officers of the board.
(b) The board of directors, the president, and such other subordinate
officers as the board of directors may authorize from time to time, acting
singly, may appoint as additional officers one or more vice presidents,
assistant secretaries, assistant treasurers, and such other subordinate
officers as the board of directors, the president, or such other appointing
officers deem necessary or appropriate.
(c) The officers of the Corporation shall hold their offices for such
terms and shall exercise such authority and perform such duties as shall be
determined from time to time by these Bylaws, the board of directors, or
(with respect to officers whom are appointed by the president or other
appointing officers) the persons appointing them; provided, however, that
the board of directors may change the term of offices and the authority of
any officer appointed by the president or other appointing officers.
(d) Any two or more offices may be held by the same person. The
officers of the Corporation shall be natural persons at least eighteen
years old.
2. TERM. Each officer shall hold office from the time of appointment until
the time of removal or resignation pursuant to Article IV, Section 3 or until
the officer's death.
3. REMOVAL AND RESIGNATION. Any officer appointed by the board of directors
may be removed at any time by the board of directors. Any officer appointed by
the president or other appointing officer may be removed at any time by the
board of directors or by the person appointing the officer. Any officer may
resign at any time by giving written notice of resignation to any director (or
to any director other than the resigning officer if the officer is also a
director), to the president, to the secretary, or to the officer who appointed
the officer. Acceptance of such resignation shall not be necessary to make it
effective, unless the notice so provides.
4. PRESIDENT. The president shall preside at all meetings of shareholders,
and shall also preside at all meetings of the board of directors unless the
board of directors has appointed a chairman, vice chairman, or other officer of
the board and has authorized such person to preside at meetings of the board of
directors instead of the president. Subject to the direction and control of the
board of directors, the president of the Corporation shall have general and
active management of the business of the Corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. The
president may negotiate, enter into, and execute contracts, deeds, and other
instruments on behalf of the Corporation as are necessary and appropriate to the
conduct to the business and affairs of the Corporation or as are approved by the
board of directors. The president shall have such additional authority and
duties as are appropriate and customary for the office of president, except as
the same may be expanded or limited by the board of directors from time to time.
5. VICE PRESIDENT. The vice president, if any, or, if there are more than
one, the vice presidents in the order determined by the board of directors or
the president (or, if no such determination is made, in the order of their
appointment), shall be the officer or officers next in seniority after the
president. Each vice president shall have such authority and duties as are
prescribed by the board of directors or president. Upon the death, absence, or
disability of the president, the vice president, if any, or, if there are more
than one, the vice presidents in the order determined by the board of directors
or the president, shall have the authority and duties of the president.
6. SECRETARY. The secretary shall be responsible for the preparation and
maintenance of minutes of the meetings of the board of directors and of the
shareholders and of the other records and information required to be kept by the
Corporation under the Colorado Business Corporation Act and for authenticating
records of the corporation. The secretary shall also give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the board of
directors, keep the minutes of such meetings, have charge of the corporate seal,
if any, and have authority to affix the corporate seal to any instrument
requiring it (and, when so affixed, it may be attested by the secretary's
signature), be responsible for the maintenance of all other corporate records
and files and for the preparation and filing of reports to governmental agencies
(other than tax returns), and have such other authority and duties as are
appropriate and customary for the office of secretary, except as the same may be
expanded or limited by the board of directors from time to time.
7. ASSISTANT SECRETARY. The assistant secretary, if any, or, if there are
more than one, the assistant secretaries in the order determined by the board of
directors or the secretary (or, if no such determination is made, in the order
of their appointment) shall, under the supervision of the secretary, perform
such duties and have such authority as may be prescribed from time to time by
the board of directors or the secretary. Upon the death, absence, or disability
of the secretary, the assistant secretary, if any, or, if there are more than
one, the assistant secretaries in the order designated by the board of directors
or the secretary (or, if no such determination is made, in the order of their
appointment), shall have the authority and duties of the secretary.
8. TREASURER. The treasurer, if any, shall have control of the funds and
the care and custody of all stocks, bonds, and other securities owned by the
Corporation, and shall be responsible for the preparation and filing of tax
returns. The treasurer shall receive all moneys paid to the Corporation and,
subject to any limits imposed by the board of directors, shall have authority to
give receipts and vouchers, to sign and endorse checks and warrants in the
Corporation's name and on the Corporation's behalf, and give full discharge for
the same. The treasurer shall also have charge of disbursement of funds of the
Corporation, shall keep full and accurate records of the receipts and
disbursements, and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors. The treasurer shall have such additional
authority and duties as are appropriate and customary for the office of
treasurer, except as the same may be expanded or limited by the board of
directors from time to time.
9. COMPENSATION. Officers shall receive such compensation for their
services as may be authorized or ratified by the board of directors. Election or
appointment of an officer shall not of itself create a contractual right to
compensation for services performed as such officer.
Article V
INDEMNIFICATION
1. DEFINITIONS. As used in this article:
(a) "Corporation" includes any domestic or foreign entity that is a
predecessor of the Corporation by reason of a merger or other transaction
in which the predecessor's existence ceased upon consummation of the
transaction.
(b) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, fiduciary, or agent of another domestic or
foreign corporation or other person or of an employee benefit plan. A
director is considered to be serving an employee benefit plan at the
Corporation's request if his or her duties to the Corporation also impose
duties on, or otherwise involve services by, the director to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
(c) "Expenses" includes counsel fees.
(d) "Liability" means the obligation incurred with respect to a
proceeding to pay a judgment, settlement, penalty, fine, including an
excise tax assessed with respect to an employee benefit plan, or reasonable
expenses.
(e) "Official capacity" means, when used with respect to a director,
the office of director in the Corporation and, when used with respect to a
person other than a director as contemplated in Article V, Section 2(a),
the office in the Corporation held by the officer or the employment,
fiduciary, or agency relationship undertaken by the employee, fiduciary, or
agent on behalf of the Corporation. "Official capacity" does not include
service for any other domestic or foreign corporation or other person or
employee benefit plan.
(f) "Party" includes a person who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
2. AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Article V, Section 2(d), the Corporation may
indemnify a person made a party to a proceeding because the person is or
was a director against liability incurred in the proceeding if:
(1) The person conducted himself or herself in good faith; and
(2) The person reasonably believed:
(A) In the case of conduct in an official capacity with the
Corporation, that his or her conduct was in the Corporation's
best interests; and
(B) In all other cases, that his or her conduct was at least
not opposed to the Corporation's best interests; and
(3) In the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the
requirement of Article V, Section 2(a)(2)(B). A director's conduct with
respect to an employee benefit plan for a purpose that the director did not
reasonably believe to be in the interests of the participants in or
beneficiaries of the plan shall be deemed not to satisfy the requirements
of Article V, Section 2(a)(1).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of
conduct described in this Article V, Section 2.
(d) The Corporation may not indemnify a director under this Article V,
Section 2:
(1) In connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to the
Corporation; or
(2) In connection with any other proceeding charging that the
director derived an improper personal benefit, whether or not
involving action in an official capacity, in which proceeding the
director was adjudged liable on the basis that he or she derived an
improper personal benefit.
(e) Indemnification permitted under this Article V, Section 2 in
connection with a proceeding by or in the right of the Corporation is
limited to reasonable expenses incurred in connection with the proceeding.
3. MANDATORY INDEMNIFICATION OF DIRECTORS. The Corporation shall indemnify
a person who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which the person was a party because the person is or was a
director, against reasonable expenses incurred by him or her in connection with
the proceeding.
4. ADVANCE OF EXPENSES TO DIRECTORS.
(a) The Corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes to the Corporation a
written affirmation of the director's good faith belief that
he or she has met the standard of conduct described in Article
V, Section 2.
(2) The director furnishes to the Corporation a
written undertaking, executed personally or on the director's
behalf, to repay the advance if it is ultimately determined
that he or she did not meet the standard of conduct; and
(3) A determination is made that the facts then known
to those making the determination would not preclude
indemnification under this article.
(b) The undertaking required by Article V, Section 4(a)(2)
shall be an unlimited general obligation of the director but need not
be secured and may be accepted without reference to financial ability
to make repayment.
(c) Determinations and authorizations of payments under this
Article V, Section 4 shall be made in the manner specified in Article
V, Section 6.
5. COURT-ORDERED INDEMNIFICATION OF DIRECTORS. A director who is or was a
party to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers necessary,
may order indemnification in the following manner:
(1) If it determines that the director is entitled to mandatory
indemnification under Article V, Section 3, the court shall order
indemnification, in which case the court shall also order the
Corporation to pay the director's reasonable expenses incurred to
obtain court-ordered indemnification.
(2) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances,
whether or not the director met the standard of conduct set forth in
Article V, Section 2(a) or was adjudged liable in the circumstances
described in Article V, Section 2(d), the court may order such
indemnification as the court deems proper; except that the
indemnification with respect to any proceeding in which liability
shall have been adjudged in the circumstances described in Article V,
Section 2(d) is limited to reasonable expenses incurred in connection
with the proceeding and reasonable expenses incurred to obtain
court-ordered indemnification.
6. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION OF DIRECTORS.
(a) The Corporation may not indemnify a director under Article V,
Section 2 unless authorized in the specific case after a determination has
been made that indemnification of the director is permissible in the
circumstances because the director has met the standard of conduct set
forth in Article V, Section 2. The Corporation shall not advance expenses
to a director under Article V, Section 4 unless authorized in the specific
case after the written affirmation and undertaking required by Article V,
Section 4(a)(1) and 4(a)(2) are received and the determination required by
Article V, Section 4(a)(3) has been made.
(b) The determinations required by Article V, Section 6(a) shall be
made:
(1) By the board of directors by a majority vote of those present
at a meeting at which a quorum is present, and only those directors
not parties to the proceeding shall be counted in satisfying the
quorum; or
(2) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board of
directors, which committee shall consist of two or more directors not
parties to the proceeding; except that directors who are parties to
the proceeding may participate in the designation of directors for the
committee.
(c) If a quorum cannot be obtained as contemplated in Article V,
Section 6(b)(1), and a committee cannot be established under Article V,
Section 6(b)(2) if a quorum is obtained or a committee is designated, if a
majority of the directors constituting such quorum or such committee so
directs, the determination required to be made by Article V, Section 6(a)
shall be made:
(1) By independent legal counsel selected by a vote of the board
of directors or the committee in the manner specified in Article V,
Section 6(b)(1) or 6(b)(2), or, if a quorum of the full board cannot
be obtained and a committee cannot be established, by independent
legal counsel selected by a majority vote of the full board of
directors; or
(2) By the shareholders.
(d) Authorization of indemnification and advance of expenses shall be
made in the same manner as the determination that indemnification or
advance of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is permissible is made by
independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected such counsel.
7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS.
(a) An officer is entitled to mandatory indemnification under Article
V, Section 3 and is entitled to apply for court-ordered indemnification
under Article V, Section 5, in each case to the same extent as a director;
(b) The Corporation may indemnify and advance expenses to an officer,
employee, fiduciary, or agent of the Corporation to the same extent as to a
director; and
(c) The Corporation may also indemnify and advance expenses to an
officer, employee, fiduciary, or agent who is not a director to a greater
extent than is provided in these bylaws, if not inconsistent with public
policy, and if provided for by general or specific action of its board of
directors or shareholders or by contract.
8. INSURANCE. The Corporation may purchase and maintain insurance on behalf
of a person who is or was a director, officer, employee, fiduciary, or agent of
the Corporation, or who, while a director, officer, employee, fiduciary, or
agent of the Corporation, is or was serving at the request of the Corporation as
a director, officer, partner, trustee, employee, fiduciary, or agent of another
domestic or foreign corporation or other person or of an employee benefit plan,
against liability asserted against or incurred by the person in that capacity or
arising from his or her status as a director, officer, employee, fiduciary, or
agent, whether or not the Corporation would have power to indemnify the person
against the same liability under Article V, Sections 2, 3, or 7. Any such
insurance may be procured from any insurance company designated by the board of
directors, whether such insurance company is formed under the laws of this state
or any other jurisdiction of the United States or elsewhere, including any
insurance company in which the Corporation has an equity or any other interest
through stock ownership or otherwise.
9. NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF DIRECTOR. If the
Corporation indemnifies or advances expenses to a director under this article in
connection with a proceeding by or in the right of the Corporation, the
Corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders' meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
Article VI
SHARES
1. CERTIFICATES. Certificates representing shares of the capital stock of
the Corporation shall be in such form as is approved by the board of directors
and shall be signed by the chairman or vice chairman of the board of directors
(if any), or the president and by the secretary or an assistant secretary or the
treasurer or an assistant treasurer. All certificates shall be consecutively
numbered, and the names of the owners, the number of shares, and the date of
issue shall be entered on the books of the Corporation. Each certificate
representing shares shall state upon its face
(a) That the Corporation is organized under the laws of the State of
Colorado;
(b) The name of the person to whom issued;
(c) The number and class of the shares and the designation of the
series, if any, that the certificate represents;
(d) The par value, if any, of each share represented by the
certificate;
(e) Any restrictions imposed by the Corporation upon the transfer of
the shares represented by the certificate; and
(f) Other matters required to be stated on the certificates by the
Colorado Business Corporation Act, ss.7-106-206 and other applicable
sections.
2. FACSIMILE SIGNATURES. Where a certificate is signed
(a) By a transfer agent other than the Corporation or its employee, or
(b) By a registrar other than the Corporation or its employee, any or
all of the officers' signatures on the certificate required by Article VI,
Section 1 may be facsimile. If any officer, transfer agent or registrar who
has signed, or whose facsimile signature or signatures have been placed
upon, any certificate, shall cease to be such officer, transfer agent, or
registrar, whether because of death, resignation, or otherwise, before the
certificate is issued by the Corporation, it may nevertheless be issued by
the Corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue.
3. TRANSFERS OF SHARES. Transfers of shares shall be made on the books of
the Corporation only upon presentation of the certificate or certificates
representing such shares properly endorsed by the person or persons appearing
upon the face of such certificate to be the owner, or accompanied by a proper
transfer or assignment separate from the certificate, except as may otherwise be
expressly provided by the statutes of the State of Colorado or by order of a
court of competent jurisdiction. The officers or transfer agents of the
Corporation may, in their discretion, require a signature guaranty before making
any transfer. The Corporation shall be entitled to treat the person in whose
name any shares are registered on its books as the owner of those shares for all
purposes and shall not be bound to recognize any equitable or other claim or
interest in the shares on the part of any other person, whether or not the
Corporation shall have notice of such claim or interest.
4. SHARES HELD FOR ACCOUNT OF ANOTHER. The board of directors may adopt by
resolution a procedure whereby a shareholder of the Corporation may certify in
writing to the Corporation that all or a portion of the shares registered in the
name of such shareholder are held for the account of a specified person or
persons. The resolution shall set forth
(a) The classification of shareholders who may certify;
(b) The purpose or purposes for which the certification may be made;
(c) The form of certification and information to be contained herein;
(d) If the certification is with respect to a record date or closing
of the stock transfer books, the time after the record date or the closing
of the stock transfer books within which the certification must be received
by the Corporation; and
(e) Such other provisions with respect to the procedure as are deemed
necessary or desirable. Upon receipt by the Corporation of a certification
complying with the procedure, the persons specified in the certification
shall be deemed, for the purpose or purposes set forth in the
certification, to be the holders of record of the number of shares
specified in place of the shareholder making the certification.
Article VII
MISCELLANEOUS
1. CORPORATE SEAL. The board of directors may adopt a seal, circular in
form and bearing the name of the Corporation and the words "SEAL" and
"COLORADO," which, when adopted, shall constitute the seal of the Corporation.
The seal may be used by causing it or a facsimile of it to be impressed,
affixed, manually reproduced, or rubber stamped with indelible ink. Even if the
Corporation has adopted a corporate seal, properly authorized actions of the
Corporation are effective whether or not any writing evidencing such action is
sealed.
2. FISCAL YEAR. The board of directors may, by resolution, adopt a fiscal
year for the Corporation.
3. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder writings
consenting to action, and other documents or writings shall be deemed to have
been received by the Corporation when they are received
(a) At the registered office of the Corporation in the State of
Colorado;
(b) At the principal office of the Corporation (as that office is
designated in the most recent document filed by the Corporation with the
Secretary of State for the State of Colorado designating a principal
office) addressed to the attention of the secretary of the Corporation;
(c) By the secretary of the corporation wherever the secretary may be
found; or
(d) By any other person authorized from time to time by the board of
directors, the president, or the secretary to receive such writings,
wherever such person is found.
4. FACSIMILE SIGNATURE. Where, under these Bylaws or under the Colorado
Business Corporation Act, as amended, a signature of a director, officer or
shareholder of the Corporation is required, such signature may be presented
either in original form or by a facsimile copy thereof, to the extent permitted
by law.
5. AMENDMENT OF BYLAWS. These Bylaws may at any time and from time to time
be amended, supplemented, or repealed by the board of directors.