EXHIBIT 3.6
BYLAWS
OF
ENTROPIN, INC.
AS AMENDED AND RESTATED
MARCH 20, 1999
INDEX TO
BYLAWS
OF
ENTROPIN, INC.
ARTICLE I - OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 PRINCIPAL OFFICE. . . . . . . . . . . . . . . . . . . .1
Section 1.2 REGISTERED OFFICE . . . . . . . . . . . . . . . . . . .1
ARTICLE II - SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . .1
Section 2.1 ANNUAL MEETING. . . . . . . . . . . . . . . . . . . . .1
Section 2.2 SPECIAL MEETINGS. . . . . . . . . . . . . . . . . . . .1
Section 2.3 COURT ORDERED MEETINGS. . . . . . . . . . . . . . . . .2
Section 2.4 PLACE OF MEETINGS . . . . . . . . . . . . . . . . . . .2
Section 2.5 NOTICE OF MEETING . . . . . . . . . . . . . . . . . . .2
Section 2.6 MEETING OF ALL SHAREHOLDERS . . . . . . . . . . . . . .3
Section 2.7 CLOSING OF TRANSFER BOOKS OR FIXING OF
RECORD DATE . . . . . . . . . . . . . . . . . . . . . .3
Section 2.8 VOTING LISTS. . . . . . . . . . . . . . . . . . . . . .4
Section 2.9 QUORUM. . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.10 MANNER OF ACTING . . . . . . . . . . . . . . . . . . .5
Section 2.11 PROXIES. . . . . . . . . . . . . . . . . . . . . . . .5
Section 2.12 VOTING OF SHARES . . . . . . . . . . . . . . . . . . .6
Section 2.13 VOTING OF SHARES BY CERTAIN SHAREHOLDERS . . . . . . .6
Section 2.14 ACTION BY SHAREHOLDERS WITHOUT A MEETING . . . . . . .7
Section 2.15 VOTING BY BALLOT . . . . . . . . . . . . . . . . . . .8
Section 2.16 NO CUMULATIVE VOTING . . . . . . . . . . . . . . . . .8
Section 2.17 WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . .8
Section 2.18 PARTICIPATION BY ELECTRONIC MEANS. . . . . . . . . . .8
ARTICLE III - BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . .8
Section 3.1 GENERAL POWERS. . . . . . . . . . . . . . . . . . . . .8
Section 3.2 PERFORMANCE OF DUTIES . . . . . . . . . . . . . . . . .8
Section 3.3 NUMBER, TENURE AND QUALIFICATIONS . . . . . . . . . . .9
Section 3.4 REGULAR MEETINGS. . . . . . . . . . . . . . . . . . . .9
Section 3.5 SPECIAL MEETINGS. . . . . . . . . . . . . . . . . . . .9
Section 3.6 NOTICE. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3.7 QUORUM. . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.8 MANNER OF ACTING. . . . . . . . . . . . . . . . . . . 10
Section 3.9 INFORMAL ACTION BY DIRECTORS OR COMMITTEE
MEMBERS . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.10 PARTICIPATION BY ELECTRONIC MEANS. . . . . . . . . . 11
Section 3.11 VACANCIES. . . . . . . . . . . . . . . . . . . . . . 11
Section 3.12 RESIGNATION. . . . . . . . . . . . . . . . . . . . . 11
Section 3.13 REMOVAL. . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.14 COMMITTEES . . . . . . . . . . . . . . . . . . . . . 11
Section 3.15 COMPENSATION . . . . . . . . . . . . . . . . . . . . 12
Section 3.16 PRESUMPTION OF ASSENT. . . . . . . . . . . . . . . . 12
ARTICLE IV - OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.1 NUMBER. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.2 ELECTION AND TERM OF OFFICE . . . . . . . . . . . . . 12
Section 4.3 REMOVAL . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.4 VACANCIES . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.5 CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . . 13
Section 4.6 PRESIDENT. . . . . . . . . . . . . . . . . . . . . . 13
Section 4.7 CHIEF EXECUTIVE OFFICER . . . . . . . . . . . . . . . 13
Section 4.8 VICE CHAIRMAN OF THE BOARD. . . . . . . . . . . . . . 14
Section 4.9 VICE PRESIDENT. . . . . . . . . . . . . . . . . . . . 14
Section 4.10 SECRETARY. . . . . . . . . . . . . . . . . . . . . . 14
Section 4.11 TREASURER. . . . . . . . . . . . . . . . . . . . . . 15
Section 4.12 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS . . . 15
Section 4.13 BONDS. . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.14 SALARIES . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS. . . . . . . . . . . 16
Section 5.1 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.2 LOANS . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.3 CHECKS, DRAFTS, ETC . . . . . . . . . . . . . . . . . 16
Section 5.4 DEPOSITS. . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VI - SHARES, CERTIFICATES FOR SHARES AND TRANSFER
OF SHARES. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.1 REGULATION. . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2 SHARES WITHOUT CERTIFICATES . . . . . . . . . . . . . 16
Section 6.3 CERTIFICATES FOR SHARES . . . . . . . . . . . . . . . 17
Section 6.4 CANCELLATION OF CERTIFICATES. . . . . . . . . . . . . 17
Section 6.5 CONSIDERATION FOR SHARES. . . . . . . . . . . . . . . 17
Section 6.6 LOST, STOLEN OR DESTROYED CERTIFICATES. . . . . . . . 17
Section 6.7 TRANSFER OF SHARES. . . . . . . . . . . . . . . . . . 18
ARTICLE VII - FISCAL YEAR. . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII - DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX - CORPORATE SEAL. . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE X - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE XI - UNIFORMITY OF INTERPRETATIONAND SEVERABILITY. . . . . . . 19
ARTICLE XII - EMERGENCY BYLAWS . . . . . . . . . . . . . . . . . . . . 19
BYLAWS
OF
ENTROPIN, INC.
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the
corporation of the corporation shall be designated from time to time by the
corporation and may be within or outside of Colorado. The corporation may
have such other offices, either within or outside of the State of Colorado
as the Board of Directors may designate, or as the business of the
corporation may require from time to time.
SECTION 1.2 REGISTERED OFFICE. The registered office of the
corporation, required by the Colorado Business Corporation Act to be
maintained in the State of Colorado, may be, but need not be, identical
with the principal office in the State of Colorado, and the address of the
registered office may be changed from time to time by the Board of
Directors.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the shareholders
shall be held at such time on such day as shall be fixed by the Board of
Directors 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 the State of Colorado, such
meeting shall be held on the next succeeding business day. If the election
of directors shall not be 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 may be convenient.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute, may be
called by the Chief Executive Officer or by the Board of Directors, and
shall be called by the Chief Executive Officer upon the receipt of one or
more written demands for a special meeting, stating the purpose or purposes
for which it is to be held, signed and dated by the holders of shares
representing at least ten percent of all the votes entitled to be cast on
any issue proposed to be considered at the meeting.
SECTION 2.3 COURT ORDERED MEETINGS. A shareholder may apply to the
district court in the county in Colorado where the corporation's principal
office is located or, if
the corporation has no principal office in Colorado, to the district court
of the county in which the corporation's registered office is located to
seek an order that a shareholder meeting be held (i) if an annual meeting
was not held within six months after the close of the corporation's most
recently ended fiscal year or fifteen months after its last annual meeting,
whichever is earlier, or (ii) if a shareholder participated in a proper
call of or demand for a special meeting and notice of the special meeting
was not given within thirty days after the date of the call or the date of
the last of the demands necessary to require the calling of the meeting was
received by the corporation pursuant to the Colorado Business Corporation
Act, or the special meeting was not held in accordance with the notice.
SECTION 2.4 PLACE OF MEETINGS. The Board of Directors may designate
any place, either within or outside of the State of Colorado, as the place
of meeting for any annual meeting or for any special meeting called by the
Board of Directors. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal office of the
corporation.
SECTION 2.5 NOTICE OF MEETING. Written notice stating the place, day
and hour of the meeting of shareholders shall be delivered not less than
ten nor more than sixty days before the date of the meeting, except that
(i) if the number of authorized shares is to be increased, at least thirty
days' notice shall be given, or (ii) any other longer notice period is
required by the Colorado Business Corporation Act. Notice of a special
meeting shall include a description of the purpose or purposes of the
meeting. Notice of an annual meeting need not include a description of the
purpose or purposes of the meeting except the purpose or purposes shall be
stated with respect to (i) an amendment to the Articles of Incorporation of
the corporation, (ii) a merger or share exchange in which the corporation
is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or
other disposition, other than in the usual and regular course of business,
of all or substantially all of the property of the corporation or of
another entity which this corporation controls, in each case with or
without the goodwill, (iv) a dissolution of the corporation, or (v) any
other purpose for which a statement of purpose is required by the Colorado
Business Corporation Act. Notice shall be given personally or by mail,
private carrier, telegraph, teletype, electronically transmitted facsimile
or other form of wire or wireless communication, by or at the direction of
the Chief Executive Officer, or the Secretary, or the officer or other
persons calling the meeting, to each shareholder entitled to vote at such
meeting. If mailed and in a comprehensible form, such notice shall be
deemed to be delivered when deposited in the United States mail, addressed
to the shareholder at his or her address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid. If notice
is given other than by mail, and provided such notice is in a
comprehensible form, the notice is given and effective on the date received
by the shareholder.
No notice need be sent to any shareholder if three successive notices
mailed to the last known address of such shareholder have been returned as
undeliverable until such time as another address for such shareholder is
made known to the corporation by such shareholder. In
-2-
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 date, time or place, notice
need not be given of the new date, time or place if the new date, time or
place of such meeting is announced before adjournment at the meeting at
which the adjournment is taken. At the adjourned meeting the corporation
may transact any business which may have been transacted at the original
meeting. If the adjournment is for more than 120 days, or if a new record
date is fixed for the adjourned meeting, a new notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at
the meeting as of the new record date.
SECTION 2.6 MEETING OF ALL SHAREHOLDERS. If all of the shareholders
shall meet at any time and place, either within or outside of the State of
Colorado, and consent in writing to the holding of a meeting at such time
and place, such meeting shall be valid without call or notice, and at such
meeting any shareholder action may be taken.
SECTION 2.7 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For
the purpose of determining shareholders entitled to (i) notice of or to
vote at any meeting of shareholders or any adjournment thereof, (ii) to
receive distributions or share dividends, (iii) demand a special meeting,
or (iv) in order to make a determination of shareholders for any other
proper purpose, the Board of Directors of the corporation may provide that
the share transfer books shall be closed for a stated period but not to
exceed, in any case, seventy days. If the share 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
share 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 seventy days and, in case of a meeting of
shareholders, 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 share transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive
payment of a distribution, the date on which notice of the meeting is
mailed or the date on which the resolution of the Board of Directors
declaring such distribution is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of shareholders has been
made as provided in this section, such determination shall apply to any
adjournment thereof, unless the meeting is adjourned to a date more than
one hundred twenty days after the date fixed for the original meeting, in
which case the Board of Directors shall make a new determination as
provided in this section.
SECTION 2.8 VOTING LISTS. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at the
earlier of ten days before such
-3-
meeting of shareholders or two business days after notice of the meeting,
a complete list of the shareholders entitled to vote at each meeting of
shareholders or any adjournment thereof. The list shall be arranged by
voting groups and within each voting group by class or series of shares,
shall be arranged in alphabetical order, within each class or series, and
shall show the address of and the number of shares of each class or series
held by each shareholder. For the period beginning the earlier of ten days
prior to such meeting or two business days after notice of the meeting is
given and continuing through the meeting and any adjournment thereof, this
list shall be kept on file at the principal office of the corporation, or
at a place (which shall be identified in the notice) in the city where the
meeting will be held. Such list shall be available for inspection on
written demand by any shareholder (including for the purpose of this
Section any holder of voting trust certificates) or his or her agent or
attorney during regular business hours and during the period available for
inspection. The original stock transfer books shall be prima facie
evidence as to the shareholders entitled to examine such list or to vote at
any meeting of shareholders.
Any shareholder, his or her agent or attorney, may copy the list
during regular business hours and during the period it is available for
inspection, provided (i) the shareholder has been a shareholder for at
least three months immediately preceding the demand or is a shareholder of
at least five percent of all of the outstanding shares of any class of
shares as of the date of the demand, (ii) the demand is made in good faith
and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the list the shareholder desires to inspect,
(iv) the list is directly connected with the described purpose; and (v) the
shareholder pays a reasonable charge covering the cost of labor and
material for such copies.
SECTION 2.9 QUORUM. One-third of the votes entitled to be cast on the
matter by a voting group, represented in person or by proxy, constitutes a
quorum of that voting group for the action on the matter. If no specific
voting group is designated in the Articles of Incorporation or under the
Colorado Business Corporation Act for a particular matter, all outstanding
shares of the corporation entitled to vote, represented in person or by
proxy, shall constitute a voting group. In the absence of a quorum at any
such meeting, a majority of the shares so represented may adjourn the
meeting from time to time for a period not to exceed one hundred twenty
days without further notice. However, if the adjournment is for more than
one hundred twenty 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.
At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The shareholders present
at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal during such meeting of that
number of shareholders whose absence would cause there to be less than a
quorum.
-4-
SECTION 2.10 MANNER OF ACTING. If a quorum is present, an action is
approved if the votes cast within the voting group favoring the action
exceeds the votes cast against the action, and the action so approved shall
be the act of the shareholders, unless the vote of a greater proportion or
number or voting by groups or classes is otherwise required by the Colorado
Business Corporation Act or by the Articles of Incorporation or these
Bylaws.
SECTION 2.11 PROXIES. At all meetings of shareholders, a shareholder
may vote by proxy by signing an appointment form or similar writing, either
personally or by his or her duly authorized attorney-in-fact. A
shareholder may also appoint a proxy by transmitting or authorizing the
transmission of a telegram, teletype, or other electronic transmission
providing a written statement of the appointment to the proxy, a proxy
solicitor, proxy support service organization, or other person duly
authorized by the proxy to receive appointments as agent for the proxy, or
to the corporation. The transmitted appointment shall set forth or be
transmitted with written evidence from which it can be determined that the
shareholder transmitted or authorized the transmission of the appointment.
The proxy appointment form or similar writing shall be filed with the
Secretary of the corporation before or at the time of the meeting. The
appointment of a proxy is effective when received by the corporation and is
valid for eleven months unless a different period is expressly provided in
the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile,
of an appointment of a proxy may be substituted for or used in lieu of the
original appointment for any purpose for which the original appointment
could be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the Secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his or her
authority under the appointment, or (ii) other notice of the revocation of
the appointment is received by the Secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his or her
authority under the appointment. Other notice of revocation may, in the
discretion of the corporation, be deemed to include the appearance at a
shareholders' meeting of the shareholder who granted the proxy and his or
her voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the Secretary or other
officer or agent authorized to tabulate votes before the proxy exercises
his or her authority under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocably if it has received a writing revoking the appointment signed by
the shareholder (including a shareholder who is a successor to the
shareholder who granted the proxy) either personally or by
-5-
his or her attorney-in-fact, notwithstanding that the revocation may be a
breach of an obligation of the shareholder to another person not to revoke
the appointment.
SECTION 2.12 VOTING OF SHARES. Unless otherwise provided by these
Bylaws or the Articles of Incorporation, each outstanding share entitled to
vote shall be entitled to one vote upon each matter submitted to a vote at
a meeting of shareholders, and each fractional share shall be entitled to
a corresponding fractional vote on each such matter. Only shares are
entitled to vote.
SECTION 2.13 VOTING OF SHARES BY CERTAIN SHAREHOLDERS. If the name on
a vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the corporation, if acting in
good faith, is entitled to accept the vote, consent, waiver, proxy
appointment or proxy appointment revocation and give it effect as the act
of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or
proxy appointment revocation does not correspond to the name of a
shareholder, the corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver, proxy appointment or proxy
appointment revocation and to give it effect as the act of the shareholder
if:
(i) the shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator,
executor, guardian or conservator representing the shareholder and, if the
corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
(iii) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation has been presented with respect
to the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(iv) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's
authority to sign for the shareholder has been presented with respect to
the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-tenants or fiduciaries, and the person signing appears to be acting
on behalf of all the co-tenants or fiduciaries; or
-6-
(vi) the acceptance of the vote, consent, waiver, proxy appointment or
proxy appointment revocation is otherwise proper under rules established by
the corporation that are not inconsistent with this Section 2.14.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the Secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or
about the signatory's authority to sign for the shareholder.
Neither the corporation nor any of its directors, officers, employees
or agents who accepts or rejects a vote, consent, waiver, proxy appointment
or proxy appointment revocation in good faith and in accordance with the
standards of this Section is liable in damages for the consequences of the
acceptance or rejection.
Redeemable shares are not entitled to be voted after notice of
redemption is mailed to the holders and a sum sufficient to redeem the
shares has been deposited with a bank, trust company or other financial
institution under an irrevocable obligation to pay the holders of the
redemption price on surrender of the shares.
SECTION 2.14 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Unless the
Articles of Incorporation or these Bylaws provide otherwise, any action
required or permitted to be taken at a meeting of shareholders may be taken
without a meeting if the action is evidenced by one or more written
consents describing the action taken, signed by each shareholder entitled
to vote and delivered to the Secretary of the corporation for inclusion in
the minutes or for filing with the corporate records. Action taken by
consent is effective as of the date the written consent is received by the
corporation unless the writings specify a different effective date, in
which case such specified date shall be the effective date for such action.
If any shareholder revokes his or her consent as provided for herein prior
to what otherwise would be the effective date, the action proposed in the
consent shall be invalid.
Any such writing may be received by the corporation by electronically
transmitted facsimile or other form of wire or wireless communication
providing the corporation with a complete copy thereof, including a copy of
the signature thereto. The shareholder so transmitting such a writing
shall furnish an original of such writing to the corporation for the
permanent record of the corporation, but the failure of the corporation to
receive for record such original writing shall not affect the action so
taken. In addition, such writings shall be deemed to be received by the
corporation if such writings are received by an officer or director of the
corporation, or an attorney representing the corporation, wherever such
persons may be found.
The record date for determining shareholders entitled to take action
without a meeting shall be the date the corporation first receives a
writing upon which the action is taken.
-7-
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 2.14 may revoke such consent by a
writing signed and dated by the shareholder describing the action and
stating that the shareholder's prior consent thereto is revoked, if such
writing is received by the corporation prior to the date the last writing
necessary to effect the action is received by the corporation.
SECTION 2.15 VOTING BY BALLOT. Voting on any question or in any
election may be by voice vote unless the presiding officer shall order or
any shareholder shall demand that voting be by ballot.
SECTION 2.16 NO CUMULATIVE VOTING. No shareholder shall be permitted
to cumulate his or her votes in the election for directors or otherwise.
SECTION 2.17 WAIVER OF NOTICE. When any notice is required to be
given to any shareholder, a waiver thereof in writing signed by the person
entitled to such notice, whether before, at, or after the time stated
therein, shall be equivalent to the giving of such notice. Such waiver
shall be delivered to the corporation for filing with the corporate
records.
The attendance of a shareholder at any meeting shall constitute a
waiver of notice, waiver of objection to defective notice of such meeting,
or a waiver of objection to the consideration of a particular matter at the
shareholder meeting unless the shareholder, at the beginning of the
meeting, objects to the holding of the meeting, the transaction of business
at the meeting, or the consideration of a particular matter at the time it
is presented at the meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 GENERAL POWERS. The business and affairs of the
corporation shall be managed by its Board of Directors.
SECTION 3.2 PERFORMANCE OF DUTIES. A director of the corporation
shall perform his or her duties as a director, including his or her duties
as a member of any committee of the board upon which he or she may serve,
in good faith, in a manner he or she reasonably believes to be in the best
interests of the corporation, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. In
performing his or her 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
persons and groups listed in paragraphs (a), (b), and (c) of this Section
3.2; but he or she shall not be considered to be acting in good faith if he
or she has knowledge concerning the matter in question
-8-
that would cause such reliance to be unwarranted. A person who so performs
his or her duties shall not have any liability by reason of being or having
been a director of the corporation.
Those persons and groups on whose information, opinions, reports, and
statements a director is entitled to rely upon are:
(a) One or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the matters
presented;
(b) Counsel, public accountants, or other persons as to matters which
the director reasonably believes to be within such persons' professional or
expert competence; or
(c) A committee of the board upon which he or she does not serve,
duly designated in accordance with the provision of the Articles of
Incorporation or these Bylaws, as to matters within its designated
authority, which committee the director reasonably believes to merit
confidence.
SECTION 3.3 NUMBER, TENURE AND QUALIFICATIONS. The number of
directors of the corporation shall be not less than three (3) nor more than
seven (7) directors, and the number of directors shall be fixed within this
range from time to time by resolution of the Board of Directors. Each
director shall hold office until the next annual meeting of shareholders or
until his or her successor shall have been elected and qualified.
Directors need not be residents of the State of Colorado or shareholders of
the corporation.
SECTION 3.4 REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without notice other 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 without the State of Colorado, for the holding of additional
regular meetings without notice other than such resolution.
SECTION 3.5 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
if any, 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 without the State of Colorado, as the place for
holding any special meeting of the Board of Directors called by them.
SECTION 3.6 NOTICE. Written notice of any special meeting of
directors shall be given as follows:
By mail to each director at his or her business address at least four
days prior to the meeting; or
-9-
By personal delivery, facsimile or telegram at least twenty-four hours
prior to the meeting to the business address of each director, or in the
event such notice is given on a Saturday, Sunday or holiday, to the
residence address of each director.
If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, so addressed, with postage thereon prepaid. If
notice is given by facsimile, such notice shall be deemed to be delivered
when a confirmation of the transmission of the facsimile has been received
by the sender. If notice is given by telegram, such notice shall be deemed
to be delivered when the telegram is delivered to the telegraph company.
Any director may waive notice of any meeting before or after the time
and date of the meeting stated in the notice. The waiver shall be in
writing and signed by the director entitled to the notice. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. 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 3.7 QUORUM. A majority of the number of directors fixed by or
pursuant to Section 3.3 of this Article III, or if no such number is fixed,
a majority of the number of directors in office immediately before the
meeting begins, 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.
SECTION 3.8 MANNER OF ACTING. Except as otherwise required by the
Colorado Business Corporation Act or by the Articles of Incorporation, the
act of the majority of the directors present at a meeting at which a quorum
is present when a vote is taken shall be the act of the Board of Directors.
SECTION 3.9 INFORMAL ACTION BY DIRECTORS OR COMMITTEE MEMBERS. Unless
the Articles of Incorporation or these Bylaws provide otherwise, any action
required or permitted to be taken at a meeting of the Board of Directors or
any committee designated by said board may be taken without a meeting if
the action is evidenced by one or more written consents describing the
action taken, signed by each director or committee member, and delivered to
the Secretary for inclusion in the minutes or for filing with the corporate
records. 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. Such consent has the same force and effect as
an unanimous vote of the directors or committee members and may be stated
as such in any document.
-10-
SECTION 3.10 PARTICIPATION BY ELECTRONIC MEANS. Any members of the
Board of Directors or any committee designated by such Board may
participate in a meeting of the Board of Directors or committee by means of
telephone conference or similar communications equipment by which all
persons participating in the meeting can hear each other at the same time.
Such participation shall constitute presence in person at the meeting.
SECTION 3.11 VACANCIES. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the
shareholders or the Board of Directors. If the directors remaining in
office constitute fewer than a quorum of the board, the directors may fill
the vacancy by the affirmative vote of a majority of all the directors
remaining in office.
If elected by the directors, the director filling the vacancy shall
hold office until the next annual shareholders' meeting at which directors
are elected. If elected by the shareholders, the director filling the
vacancy shall hold office for the unexpired term of his or her predecessor
in office; except that, if the director's predecessor was elected by the
directors to fill a vacancy, the director elected by the shareholders shall
hold the office for the unexpired term of the last predecessor elected by
the shareholders.
If the vacant office was held by a director elected by a voting group
of shareholders, only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the shareholders,
and, if one or more of the remaining directors were elected by the same
voting group, only such directors so elected by the same voting group are
entitled to vote to fill the vacancy if it is filled by the directors.
SECTION 3.12 RESIGNATION. Any director of the corporation may resign
at any time by giving written notice to the Secretary of the corporation.
The resignation of any director shall take effect upon receipt of notice
thereof or at such later time as shall be specified in such notice; and,
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. When one or more directors
shall resign from the board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective.
SECTION 3.13 REMOVAL. Subject to any limitations contained in the
Articles of Incorporation, any director or directors of the corporation may
be removed at any time, with or without cause, in the manner provided in
the Colorado Business Corporation Act.
SECTION 3.14 COMMITTEES. By resolution adopted by a majority of the
Board of Directors, the directors may designate two or more directors to
constitute a committee, any of which shall have such authority in the
management of the corporation as the Board of Directors shall designate and
as shall be prescribed by or limited by the Colorado Business Corporation
Act and Article XI of these Bylaws.
-11-
SECTION 3.15 COMPENSATION. By resolution of the Board of Directors
and irrespective of any personal interest of any of the directors, each
director may be paid his or her expenses, if any, of attendance at each
meeting of the Board of Directors, and may be paid a stated salary as
director or a fixed sum for attendance at each meeting of the Board of
Directors or both. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 3.16 PRESUMPTION OF ASSENT. A director of the corporation who
is present at a meeting of the Board of 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) the director objects at the
beginning of the meeting, or promptly upon his or her arrival, to the
holding of the meeting or the transaction of business at the meeting and
does not thereafter vote for or assent to any action taken at the meeting,
(ii) the director contemporaneously requests that his or her dissent or
abstention as to any specific action taken be entered in the minutes of the
meeting, or (iii) the director causes written notice of his or her dissent
or abstention as to any specific action to be received by the presiding
officer or the meeting before its adjournment or by the corporation
promptly 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.
ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the corporation shall be a Chief
Executive Officer, President, a Secretary, and a Treasurer, each of whom
must be a natural person who is eighteen years or older and shall be
elected by the Board of Directors. A Chairman of the Board, Vice Chairman
of the Board, and one or more Vice Presidents shall be executive officers
if the Board so determines by resolution. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed
and removed as the Board of Directors decides. Any two or more offices may
be held by the same person.
SECTION 4.2 ELECTION AND TERM OF OFFICE. The officers of the
corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after the 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 practicable. Each officer shall hold office
until his or her successor shall have been duly elected and shall have
qualified or until his or her death or until he or she shall resign or
shall have been removed in the manner hereinafter provided.
-12-
SECTION 4.3 REMOVAL. Any officer or agent may be removed by the Board
of Directors at any time, with or without cause, 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 of itself create
contract rights.
An officer may resign at any time by giving written notice of the
resignation to the Secretary of the corporation. The resignation is
effective when the notice is received by the corporation unless the notice
specifies a later effective date.
SECTION 4.4 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
SECTION 4.5 CHAIRMAN OF THE BOARD. If a Chairman of the Board of
Directors (the "Chairman") shall be elected by the Board of Directors, the
Chairman shall preside at the meetings of the shareholders and of the Board
of Directors. The Chairman may sign, with the officers authorized by the
Chief Executive Officer or the Board of Directors, certificates for the
shares of the corporation and shall perform such other duties as from time
to time are assigned by the Chief Executive Officer or the Board of
Directors. The Chairman of the Board of Directors may be elected as the
Chief Executive Officer, in which case the Chairman shall perform the
duties hereinafter set forth in Article IV, Section 4.7, of these Bylaws.
SECTION 4.6 PRESIDENT. The Chief Executive Officer may sign, with the
officers authorized by the Chief Executive Officer or the Board of
Directors, certificates for shares of the corporation and shall perform
such other duties as from time to time are assigned by the Chief Executive
Officer or the Board of Directors. The President may be elected as the
Chief Executive Officer of the corporation, in which case, the President
shall perform the duties hereinafter set forth in Article IV, Section 4.7
of these Bylaws.
SECTION 4.7 CHIEF EXECUTIVE OFFICER. If no Chairman shall be elected
by the Board of Directors, the President shall be the Chief Executive
Officer of the corporation. If a Chairman is elected by the Board of
Directors, the Board of Directors shall designate who shall be the Chief
Executive Officer. The Chief Executive Officer shall be, subject to the
control of the Board of Directors, in general charge of the affairs of the
corporation. The Chief Executive Officer may sign, with the other officers
of the corporation authorized by the Board, deeds, mortgages, bonds,
contracts or other instruments whose execution the Board of Directors has
authorized, except in cases where the signing and execution thereof shall
be expressly delegated by the Board of Directors or these Bylaws to some
officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed.
SECTION 4.8 VICE CHAIRMAN OF THE BOARD. If a Chairman shall be
elected by the Board of Directors, the Board of Directors may also elect a
Vice Chairman of the
-13-
Board of Directors (the "Vice Chairman"). In the absence of the Chairman
or in the event of the death or inability or refusal to act of the
Chairman, the Vice Chairman shall perform the duties of the Chairman and
when so acting shall have all the powers of and be subject to all the
restrictions upon the Chairman. The Vice Chairman may sign, with the other
officers authorized by the Chief Executive Officer or the Board of
Directors, certificates for shares of the corporation and shall perform
such other duties as from time to time may be assigned by the Chief
Executive Officer or the Board of Directors.
SECTION 4.9 VICE PRESIDENT. In the absence of the President or in the
event of the death or inability or refusal to act of the President, the
Vice President shall perform the duties of the President, and when so
acting shall have all the powers of and be subject to all the restrictions
upon the President. In the event there is more than one Vice President,
the Vice Presidents in the order designated at the time of their election,
or in the absence of any designation, then in the order of their election,
shall perform the duties of the President and, when so acting, shall have
all the powers of and shall be subject to all the restrictions upon the
President. Any Vice President may sign, with the other officers authorized
by the Chief Executive Officer or the Board of Directors, certificates for
shares of the corporation and shall perform such other duties as from time
to time may be assigned by the Chief Executive Officer or the Board of
Directors.
SECTION 4.10 SECRETARY. The Secretary shall (a) prepare and maintain
as permanent records the minutes of the proceedings of the shareholders and
the Board of Directors, a record of all actions taken by the shareholders
or Board of Directors without a meeting, a record of all actions taken by
a committee of the Board in place of the Board of Directors on behalf of
the corporation, and a record of all waivers of notice and meetings of
shareholders and of the Board of Directors or any committee thereof, (b)
ensure that all notices are duly given in accordance with the provisions of
these Bylaws and as required by law, (c) serve as 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 the
corporation's registered office or principal place of business a record
containing the names and addresses of all shareholders in a form that
permits preparation of a list of shareholders arranged by voting group and
by class or series of shares within each voting group, that is alphabetical
within each class or series and that shows the address of, and the number
of shares of each class or series held by, each shareholder, unless such a
record shall be kept at the office of the corporation's transfer agent or
registrar, (e) maintain at the corporation's principal office the originals
or copies of the corporation's Articles of Incorporation, Bylaws, minutes
of all shareholders' meetings and records of all action taken by
shareholders without a meeting for the past three years, all written
communications within the past three years to shareholders as a group or to
the holders of any class or series of shares as a group, a list of the
names and business addresses of the current directors and officers, a copy
of the corporation's most recent corporate report filed with the Secretary
of State, and financial statements showing in reasonable detail the
corporation's assets and liabilities and results of operations for the last
three years, (f) have general charge of the stock transfer books of the
-14-
corporation, unless the corporation has a transfer agent, (g) authenticate
records of the corporation, and (h) 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 or her by the president or by the Board of Directors.
Assistant Secretaries, if any, shall have the same duties and powers,
subject to supervision by the Secretary. The directors or shareholders may
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 4.11 TREASURER. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the
corporation; (b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever, and deposit all such moneys in
the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of
Article V of these Bylaws; and (c) in general perform all of the duties
incident to the office of Treasurer and such other duties as from time to
time may be assigned to him or her by the President or by the Board of
Directors.
SECTION 4.12 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
SECTION 4.13 BONDS. If the Board of Directors by resolution shall so
require, any officer or agent of the corporation shall give bond to the
corporation in such amount and with such surety as the Board of Directors
may deem sufficient, conditioned upon the faithful performance of his or
her respective duties and offices.
SECTION 4.14 SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be
prevented from receiving such salary by reason of the fact that he or she
is also a director of the corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 5.1 CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the corporation,
and such authority may be general or confined to specific instances.
-15-
SECTION 5.2 LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
SECTION 5.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to
time be determined by resolution of the Board of Directors.
SECTION 5.4 DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the
Board of Directors may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
SECTION 6.1 REGULATION. The Board of Directors may make such rules
and regulations as it may deem appropriate concerning the issuance,
transfer and registration of certificates for shares of the corporation,
including the appointment of transfer agents and registrars.
SECTION 6.2 SHARES WITHOUT CERTIFICATES. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, the Board of Directors may
authorize the issuance of any of its classes or series of shares without
certificates. Such authorization shall not affect shares already
represented by certificates until they are surrendered to the corporation.
Within a reasonable time following the issue or transfer of shares
without certificates, the corporation shall send the shareholder a complete
written statement of the information required on certificates by the
Colorado Business Corporation Act.
SECTION 6.3 CERTIFICATES FOR SHARES. If shares of the corporation are
represented by certificates, the certificates shall be respectively
numbered serially for each class of shares, or series thereof, as they are
issued, and shall be signed by an officer of the corporation authorized by
these Bylaws or a resolution of the Board of Directors; provided that such
signatures may be facsimile. Each certificate shall state the name of the
corporation, the fact that the corporation is organized or incorporated
under the laws of the State of Colorado, the name of the person to whom
issued, the date of issue, the class (or series of any class), the number
of shares represented thereby. A statement of the designations,
preferences, qualifications, limitations, restrictions and special or
relative rights of the shares of each class shall be set forth in full or
summarized on the face or back of the certificates which the corporation
shall issue, or in lieu
-16-
thereof, the certificate may set forth that such a statement or summary
will be furnished to any shareholder upon request without charge. Each
certificate shall be otherwise in such form as may be prescribed by the
Board of Directors and as shall conform to the rules of any stock exchange
on which the shares may be listed.
The corporation shall not issue certificates representing fractional
shares and shall not be obligated to make any transfers creating a
fractional interest in a share of stock. The corporation may, but shall
not be obligated to, issue scrip in lieu of any fractional shares, such
scrip to have terms and conditions specified by the Board of Directors.
SECTION 6.4 CANCELLATION OF CERTIFICATES. All certificates
surrendered to the corporation for transfer shall be cancelled and no new
certificates shall be issued in lieu thereof until the former certificate
for a like number of shares shall have been surrendered and cancelled,
except as herein provided with respect to lost, stolen or destroyed
certificates.
SECTION 6.5 CONSIDERATION FOR SHARES. Certificated or uncertificated
shares shall not be issued until the shares represented thereby are fully
paid. The Board of Directors may authorize the issuance of shares for
consideration consisting of any tangible or intangible property or benefit
to the corporation, including cash, promissory notes, services performed or
other securities of the corporation. Future services shall not constitute
payment or partial payment for shares of the corporation. The promissory
note of a subscriber or an affiliate of a subscriber shall not constitute
payment or partial payment for shares of the corporation unless the note is
negotiable, recourse and is secured by collateral, other than the shares
being purchased, having a fair market value of at least equal to the
principal amount of the note.
SECTION 6.6 LOST, STOLEN OR DESTROYED CERTIFICATES. Any shareholder
claiming that his or her certificate for shares is lost, stolen or
destroyed may make an affidavit or affirmation of that fact and lodge the
same with the Secretary of the corporation, accompanied by a signed
application for a new certificate. Thereupon, and upon the giving of a
satisfactory bond of indemnity to the corporation not exceeding an amount
double the value of the shares as represented by such certificate (the
necessity for such bond and the amount required to be determined by the
President and Treasurer of the corporation), a new certificate may be
issued of the same tenor and representing the same number, class and series
of shares as were represented by the certificate alleged to be lost, stolen
or destroyed.
SECTION 6.7 TRANSFER OF SHARES. Subject to the terms of any
shareholder agreement relating to the transfer of shares or other transfer
restrictions contained in the Articles of Incorporation or authorized
therein, shares of the corporation shall be transferable on the books of
the corporation by the holder thereof in person or by his or her duly
authorized attorney, upon the surrender and cancellation of a certificate
or certificates for a like number of shares. Upon presentation and
surrender of a certificate for shares properly endorsed and payment of all
taxes
-17-
therefor, the transferee shall be entitled to a new certificate or
certificates in lieu thereof. As against the corporation, a transfer of
shares can be made only on the books of the corporation and in the manner
hereinabove provided, and the corporation shall be entitled to treat the
holder of record of any share as the owner thereof and shall not be bound
to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice thereof, except as expressly provided by the Colorado Business
Corporation Act.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall end on the last day of
December in each calendar year or shall be as determined by resolution of
the Board of Directors.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may from time to time declare, and the
corporation may pay, distributions on its outstanding shares in the manner
and upon the terms and conditions provided by the Colorado Business
Corporation Act and its Articles of Incorporation.
ARTICLE IX
CORPORATE SEAL
The Board of Directors may authorize the use of a corporate seal which
shall be circular in form and shall have inscribed thereon the name of the
corporation and the state of incorporation and the words "CORPORATE SEAL."
ARTICLE X
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by a majority of the directors present at any meeting of the Board
of Directors of the corporation at which a quorum is present when a vote is
taken.
-18-
ARTICLE XI
UNIFORMITY OF INTERPRETATION
AND SEVERABILITY
These Bylaws shall be so interpreted and construed as to conform to
the Articles of Incorporation, as amended, and the statutes of the State of
Colorado or of any other state in which conformity may become necessary by
reason of the qualification of the corporation to do business in such
foreign state, and where conflict between these Bylaws and the Articles of
Incorporation, as amended, or a statute has arisen or shall arise, the
Bylaws shall be considered to be modified to the extent, but only to the
extent, conformity shall require. If any Bylaw provision or its
application shall be deemed invalid by reason of the said nonconformity,
the remainder of the Bylaws shall remain operable in that the provisions
set forth in the Bylaws are severable.
ARTICLE XII
EMERGENCY BYLAWS
The Emergency Bylaws provided in this Article XII shall be operative
during any emergency in the conduct of the business of the corporation
resulting from a catastrophic event causing a quorum of directors to be not
readily obtained as a result thereof, notwithstanding any different
provision in the preceding articles of the Bylaws or in the Articles of
Incorporation of the corporation or in the Colorado Business Corporation
Act. To the extent not inconsistent with the provisions of this Article,
the Bylaws provided in the preceding articles shall remain in effect during
such emergency and upon its termination the Emergency Bylaws shall cease to
be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called by any officer
or director of the corporation. Notice of the time and place of the
meeting shall be given by the person calling the meeting to such of the
directors as it may be feasible to reach by any available means of
communication. Such notice shall be given at such time in advance of the
meeting as circumstances permit in the judgment of the person calling the
meeting.
(b) At any such meeting of the Board of Directors, a quorum shall
consist of the number of directors in attendance at such meeting.
-19-
(c) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the principal office or
designate several alternative principal offices or regional offices, or
authorize the officers so to do.
(d) The Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession
in the event that during such an emergency any or all officers or agents of
the corporation shall for any reason be rendered incapable of discharging
their duties.
(e) No officer, director or employee acting in accordance with these
Emergency Bylaws shall be liable except for willful misconduct.
(f) These Emergency Bylaws shall be subject to repeal or change by
further action of the Board of Directors or by action of the shareholders,
but no such repeal or change shall modify the provisions of the next
preceding paragraph with regard to action taken prior to the time of such
repeal or change. Any amendment of these Emergency Bylaws may make any
further or different provision that may be practical and necessary for the
circumstances of the emergency.
-20-