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EXHIBIT 3.1(b)
BYLAWS
OF
ECHOSTAR BROADBAND CORPORATION
ARTICLE I
OFFICES
1.1 Principal Office. The principal offices of the Corporation shall
initially be at 5701 S. Santa Fe Drive, Littleton, Colorado 80120, but the
Corporation may, in the discretion of the board of directors, maintain offices
wherever the business of the Corporation may require.
1.2 Registered Office and Agent. The Corporation shall continuously
maintain in the State of Colorado a registered office and a registered agent
whose business office is identical with the registered office. The initial
registered office and the initial registered agent are specified in the original
Articles of Incorporation for the Corporation. The Corporation may change its
registered office, its registered agent, or both, upon filing a statement as
specified by law in the office of the Secretary of State of Colorado.
ARTICLE II
SHAREHOLDERS
2.1 Time and Place. Any meeting of the shareholders may be held at such
time and place, within or outside the State of Colorado, as may be fixed by the
board of directors or as shall be specified in the notice or waiver of notice of
the meeting. If the place for a meeting is not fixed by the board of directors,
such meeting shall be held at the Corporation's principal office.
2.2 Annual Shareholders' Meeting. 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; provided, however, that the first annual meeting shall
be held on a date that is within six months after the close of the first fiscal
year of the Corporation, and each successive annual meeting shall be held on a
date that is within the earlier of six months after the close of the year or
fifteen months after the last annual meeting.
2.3 Special Shareholders' Meeting. A special shareholders meeting for
any purpose or purposes, may be called by the board of directors or the
president. The Corporation shall also hold a special shareholders meeting in the
event it receives, in the manner specified in Section 8.3, one or more written
demands for the meeting, stating the purpose or purposes for which it is to be
held, signed and dated by the holders of shares representing not less than
one-tenth of all of the votes entitled to be cast on any issue to be determined
at the meeting. Special meetings shall be held at the principal office of the
Corporation or at such other place as the board of directors or the president
may determine.
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2.4 Record Date for Determination of Shareholders.
(a) In order to make a determination of shareholders entitled
to (i) notice of or to vote at any shareholders meeting or at any adjournment of
a shareholders meeting, (ii) demand a special shareholders meeting, (iii) take
any other action or (iv) receive payment of a share dividend or a distribution,
or for any other purpose, the board of directors may fix a future date as the
record date for such determination of shareholders. The record date may be fixed
not more than seventy days before the date of the proposed action.
(b) Unless otherwise specified when the record date is fixed,
the time of day for determination of shareholders shall be as of the
Corporation's close of business on the record date.
(c) A determination of shareholders entitled, to be given
notice of or to vote at a shareholders meeting is effective for any adjournment
of the meeting unless the board of directors fixes a new record date, which the
board shall do if the meeting is adjourned to a date more than one hundred
twenty days after the date fixed for the original meeting.
(d) If no record date is otherwise fixed, the record date for
determining shareholders entitled to be given notice of and to vote at an annual
or special shareholders meeting is the day before the first notice is given to
shareholders.
(e) The record date for determining shareholders entitled to
take action without a meeting pursuant to Section 2.11 is the date a writing
upon which the action is taken is first received by the Corporation.
2.5 Voting List.
(a) After a record date is fixed for a shareholders meeting,
the secretary shall prepare a list of the names of all its shareholders who are
entitled to be given notice of the meeting. The list (i) shall be arranged by
voting groups and within each voting group by class or series of shares, (ii)
shall be alphabetical within each class or series and (iii) shall show the
address of, and the number of shares of each such class and series that are held
by, each shareholder.
(b) The shareholders' list shall be available for inspection
by any shareholder, beginning the earlier of ten days before the meeting for
which the list was prepared or two business days after notice of the meeting is
given and continuing through the meeting, and any adjournment thereof, at the
Corporation's principal office or at a place identified in the notice of the
meeting in the city where the meeting will be held.
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(c) The secretary shall make the shareholders list available
at the meeting, and any shareholder or agent or attorney of a shareholder is
entitled to inspect the list at any time during the meeting or any adjournment
thereof.
2.6 Notice to Shareholders.
(a) The secretary shall give notice to shareholders of the
date, time and place of each annual and special shareholders meeting no fewer
than ten nor more than sixty days before the date of the meeting; except that,
if the articles of incorporation are to be amended to increase the number of
authorized shares, at least thirty days notice shall be given. Except as
otherwise required by the Colorado Business Corporation Act (the "Act"), the
secretary shall be required to give such notice only to shareholders entitled to
vote at the meeting.
(b) Notice of an annual shareholders meeting need not include
a description of the purpose or purposes for which the meeting is called unless
a purpose of the meeting is to consider an amendment to the articles of
incorporation, a restatement of the articles of incorporation, a plan of merger
or share exchange, disposition of substantially all of the property of the
Corporation, consent by the Corporation to the disposition of property by
another entity or dissolution of the Corporation,
(c) Notice of a special shareholders meeting shall include a
description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders meeting shall be in writing and
shall be given
(i) by deposit in the United States mail, properly
addressed to the shareholder's address shown in the Corporation's current record
of shareholders, first class postage prepaid, and, if so given, shall be
effective when mailed; or
(ii) by telegraph, teletype, electronically
transmitted facsimile, electronic mail, mail or private carrier or by personal
delivery to the shareholder, and, if so given, shall be effective when actually
received by the shareholder.
(e) If an annual or special shareholders meeting is adjourned
to a different date, time or place, notice need not be given of the new date,
time or place if the new date, time or place is announced at the meeting before
adjournment; provided, however, that, if a new record date for the adjourned
meeting is fixed pursuant to Section 2.4, notice of the adjourned meeting shall
be given to persons who are shareholders as of the new record date.
(f) If three successive notices are given by the Corporation,
whether with respect to a shareholders meeting or otherwise, to a shareholder
and are returned as undeliverable, no further notices to such shareholder shall
be necessary until another address for the shareholder is made known to the
Corporation.
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2.7 Quorum. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. A majority of the votes entitled to be cast on the
matter by the voting group shall constitute a quorum of that voting group for
action on the matter. If a quorum does not exist with respect to any voting
group, the president or any shareholder or proxy that is present at the meeting,
whether or not a member of that voting group, may adjourn the meeting to a
different date, time or place, and (subject to the next sentence) notice need
not be given of the new date, time or place if the new date, time or place is
announced at the meeting before adjournment. If a new record date for the
adjourned meeting is or must be fixed pursuant to Section 2.4, notice of the
adjourned meeting shall be given pursuant to Section 2.6 to persons who are
shareholders as of the new record date. At any adjourned meeting at which a
quorum exists, any matter must be acted upon that could have been acted upon at
a 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. Once a share is
represented for any purpose at a meeting, including the purpose of determining
that a quorum exists, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or shall be set for that adjourned meeting.
2.8 Voting Entitlement of Shares. Except as stated in the articles of
incorporation, each outstanding share, regardless of class, is entitled to one
vote, and each fractional share is entitled to a corresponding fractional vote,
on each matter voted on at a shareholders meeting.
2.9 Proxies, Acceptance of Votes and Consents.
(a) A shareholder may vote either in person or by proxy.
(b) An appointment of a proxy is not effective against the
Corporation until the appointment is received by the Corporation. An appointment
is valid for eleven months unless a different period is expressly provided in
the appointment form.
(c) The Corporation may accept or reject any appointment of a
proxy, revocation of appointment of a proxy, vote, consent, waiver or other
writing purportedly signed by or for a shareholder, if such acceptance or
rejection is in accordance with the provisions of Sections 7-107-203 and
7-107-205 of the Act.
2.10 Waiver of Notice.
(a) A shareholder may waive any notice required by the Act,
the articles of incorporation or the 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.
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(b) A shareholder's attendance at a meeting (i) waives
objection to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and (ii) waives objection to consideration of a particular matter at the
meeting that is not within the purpose or purposes described in the meeting
notice, unless the shareholder objects to considering the matter when it is
presented.
2.11 Action by Shareholders Without a Meeting. Any action required or
permitted to be taken at a shareholders meeting may be taken without a meeting
if all of the shareholders entitled to vote thereon consent to such action in
writing. Action pursuant to this Section 2.11 shall be effective when the
Corporation has received writings that describe and consent to the action,
signed by all of the shareholders entitled to vote thereon. Action taken
pursuant to this Section 2.11 shall be effective as of the date the last writing
necessary to effect the action is received by the Corporation, unless all of the
writings necessary to effect the action specify another date, which may be
before or after the date the writings are received by the Corporation. Such
action shall have the same effect as action taken at a meeting of shareholders
and may be described as such in any document. Any shareholder who has signed a
writing describing and consenting to an action taken pursuant to this Section
2.11 may revoke such consent by a writing signed by the shareholder describing
the action and stating that the shareholder's prior consent thereto is revoked,
if such writing is received by the Corporation before the effectiveness of the
action.
2.12 Meetings by Telecommunications. Any or all of the shareholders may
participate in an annual or special shareholders meeting by, or the meeting may
be conducted through the use of, any means of communication by which all persons
participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
DIRECTORS
3.1 Authority of the Board of Directors. The corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a board of directors.
3.2 Number. The number of directors shall be 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.
3.3 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.
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3.4 Election. The board of directors shall be elected at the annual
meeting of the shareholders or at a special meeting called for that purpose.
3.5 Term. Each director shall be elected to hold office until the next
annual meeting of shareholders and until the director's successor is elected and
qualified.
3.6 Resignation. A director may resign at any time by giving written
notice of his or her resignation to any other director or (if the director is
not also the secretary) to the secretary. The resignation shall be effective
when it is received by another director or the secretary, as the case may be,
unless the notice of resignation specifies a later effective date. Acceptance of
such resignation shall not be necessary to make it effective unless the notice
so provides.
3.7 Removal. Any director may be removed by the shareholders, with or
without cause, at a meeting called for that purpose. The notice of the meeting
shall state that the purpose, or one of the purposes, of the meeting is removal
of the director. A director may be removed only if the number of votes cast in
favor of removal exceeds the number of votes cast against removal.
3.8 Vacancies.
(a) If a vacancy occurs on the board of directors, including a
vacancy resulting from an increase in the number of directors:
(i) The shareholders may fill the vacancy at the next
annual meeting or at a special meeting called for that purpose; or
(ii) The board of directors may fill the vacancy; or
(iii) If the directors remaining in office constitute
fewer than a quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
(b) Notwithstanding Section 3.8(a), if the vacant office was
held by a director elected by a voting group of shareholders, then, if one or
more of the remaining directors were elected by the same voting group, only such
directors are entitled to vote to fill the vacancy if it is filled by directors,
and they may do so by the affirmative vote of a majority of such directors
remaining in office; and only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific later date, by
reason of a resignation that will become effective at a later date under Section
3.6 or otherwise, may be filled before the vacancy occurs, but the new director
may not take office until the vacancy occurs.
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3.9 Meetings. The board of directors may hold regular or special
meetings within or outside of Colorado. A regular meeting shall be held without
notice immediately after and at the same place as the annual meeting of the
shareholders. The board of directors may, by resolution, establish other dates,
times and places for additional regular meetings, which may thereafter be held
without further notice. Special meetings may be called by the president or by
any two directors and shall be held at the principal office of the Corporation
unless otherwise specified in the notice of the meeting. At any time when the
board consists of a single director, that director may act at any time, date or
place without notice.
3.10 Notice of Special Meeting. Notice of a special meeting shall be
given to every director at least 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 or private carrier. Notice shall be effective at the
earliest of (a) the time it is received; (b) five days after it is deposited in
the United States mail, properly addressed to the last address for the director
shown on the records of the Corporation, first class postage prepaid or (c) the
date shown on the return receipt if mailed by registered or certified mail,
return receipt requested, postage prepaid, in the United States mail and if the
return receipt is signed by the director to whom the notice is addressed.
3.11 Quorum. Except as provided in Section 3.8, a majority of the
number of directors fixed in accordance with these bylaws shall constitute a
quorum for the transaction of business at all meetings of the board of
directors. The act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the board of directors, except as
otherwise specifically required by law,
3.12 Waiver of Notice.
(a) A director may waive any notice of a meeting before or
after the time and date of the meeting stated in the notice. Except as provided
by Section 3.12(b), the waiver shall be in writing and shall be signed by the
director. Such waiver shall be delivered to the secretary for filing with the
corporate records, but such delivery and filing shall not be conditions of the
effectiveness of the waiver.
(b) A director's attendance at or participation in a meeting
waives any required notice to him or her of the meeting unless, at the beginning
of the meeting or promptly upon his or her later arrival, the director objects
to holding the meeting or transacting business at the meeting because of lack of
notice or defective notice and does not thereafter vote for or assent to action
taken at the meeting.
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3.13 Meetings by Telecommunications. One or more directors may
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
hear each other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
3.14 Deemed Assent to Action. A director who is present at a meeting of
the board of directors when corporate action is taken shall be deemed to have
assented to all action taken at the meeting unless
(i) a director objects at the beginning of the meeting, or
promptly upon his or her arrival, to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to any action taken at
the meeting;
(ii) The director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in the minutes
of the meeting; or
(iii) The director causes written notice of his or her dissent
or abstention as to any specific action to be received by the presiding officer
of the meeting before adjournment of the meeting or by the secretary (or, if the
director is the secretary, by another director) promptly after adjournment of
the meeting. The right of dissent or abstention pursuant to this Section 3.14 as
to a specific action is not available to a director who votes in favor of the
action taken.
3.15 Action by Directors Without a Meeting. Any action required or
permitted by law to be taken at a board of directors meeting may be taken
without a meeting if all members of the board consent to such action in writing.
The action shall be deemed to have been so taken by the board at the time the
last director signs a writing describing the action, unless, before such time,
any director has revoked his or her consent by a writing signed by the director
and received by the president or the secretary or any other person authorized by
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.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
4.1 Subject to the provisions of Section 7-109-106 of the Act, the
board of directors may create one or more committees and appoint one or more
members of the board of directors to serve on them. The creation of a committee
and appointment of members to it shall require the approval of a majority of all
the directors in office when the action is taken, whether or not those directors
constitute a quorum of the board.
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4.2 The provisions of these bylaws governing meetings, action without
meeting, notice, waiver of notice and quorum and voting requirements of the
board of directors apply to committees and their members as well.
4.3 To the extent specified by resolution adopted from time to time by
a majority of all the directors in office when the resolution is adopted,
whether or not those directors constitute a quorum of the board, each committee
shall exercise the authority of the board of directors with respect to the
corporate powers and the management of the business and affairs of the
Corporation, except that a committee shall not:
(a) authorize distributions;
(b) approve or propose to shareholders action that the Act
requires to be approved by shareholders;
(c) fill vacancies on the board of directors or on any of its
committees;
(d) amend the articles of incorporation pursuant to Section
7-110-102 of the Act;
(e) adopt, amend or repeal bylaws;
(f) approve a plan of merger not requiring shareholder
approval;
(g) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of directors; or
(h) authorize or approve the issuance or sale of shares, or a
contract for the sale of shares, or determine the designation and relative
rights, preferences and limitations of a class or series of shares, except that
the board of directors may authorize a committee or an officer to do so within
limits specifically prescribed by the board of directors.
4.4 The creation of, delegation of authority to, or action by, a
committee does not alone constitute compliance by a director with applicable
standards of conduct.
ARTICLE V
OFFICERS
5.1 General. The Corporation shall have as officers a president, a
secretary, and a treasurer, who shall be appointed by the board of directors.
The board of directors may appoint as additional officers a chairman and other
officers of the board. The board of directors, the president, and such other
subordinate officers as the board of directors may authorize from time to time,
acting singly, may appoint as additional officers one or more vice presidents,
assistant secretaries, assistant
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treasurers, and such other subordinate officers as the board of directors, the
president, or such other appointing officer deems necessary or appropriate. The
officers of the Corporation shall hold their offices for such terms and shall
exercise such authority and perform such duties as shall be determined from time
to time by these Bylaws, the board of directors, or (with respect to officers
who are appointed by the president or other appointing officers) the persons
appointing them; provided, however, that the board of directors may change the
term of offices and the authority of any officer appointed by the president or
other appointing officers. Any two or more officers may be held by the same
person. The officers of the Corporation shall be natural persons at least
eighteen years old.
5.2 Term. Each officer shall hold office from the time of appointment
until the time of removal or resignation pursuant to Section 3.6 or until the
officer's death.
5.3 Removal and Resignation. Any officer appointed by the board of
directors may be removed at any time by the board of directors. Any officer
appointed by the president or other appointing officer may be removed at any
time by the board of directors or by the person appointing the officer. Any
officer may resign at any time by giving written notice of resignation to any
director (or to any director other than the resigning officer if the officer is
also a director), to the president, to the secretary or to the officer who
appointed the officer. Acceptance of such resignation shall not be necessary to
make it effective, unless the notice so provides.
5.4 President. The president shall preside at all meetings of
shareholders, and the president shall also preside at all meetings of the board
of directors unless the board of directors has appointed a chairman, vice
chairman, or other officer of the board and has authorized such person to
preside at meetings of the board of directors instead of the president. Subject
to the direction and control of the board of directors, the president shall be
the chief executive officer of the Corporation and as such shall have general
and active management of the business of the Corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. The
president may negotiate, enter into and execute contracts, deeds and other
instruments on behalf of the Corporation as are necessary and appropriate to the
conduct to the business and affairs of the Corporation or as are approved by the
board of directors. The president shall have such additional authority and
duties as are appropriate and customary for the office of president and chief
executive officer, except as the same may be expanded or limited by the board of
directors from time to time.
5.5 Vice President. The vice president, if any, or, if there are more
than one, the vice presidents in the order determined by the board of directors
or the president (or, if no such determination is made, in the order of their
appointment), shall be the officer or officers next in seniority after the
president. Each vice president shall have such authority and duties as are
prescribed by the board of directors or the president. Upon the death, absence,
or disability of the president, the vice president, if any, or, if there are
more than one, the vice presidents in the order of seniority as determined
above, shall have the authority and duties of the president.
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5.6 Secretary. The secretary shall be responsible for the preparation
and maintenance of minutes of the meetings of the board of directors and of the
shareholders and of the other records and information required to be kept by the
Corporation under Section 7-116-101 of the Act and for authenticating records of
the Corporation. The secretary shall also give, or cause to be given, notice of
all meetings of the shareholders and special meetings of the board of directors,
keep the minutes of such meetings, have charge of the corporate seal and have
authority to affix the corporate seal to any instrument requiring it (and, when
so affixed, it may be attested by the secretary's signature), be responsible for
the maintenance of all other corporate records and files and for the preparation
and filing of reports to governmental agencies (other than tax returns), and
have such other authority and duties as are appropriate and customary for the
office of secretary, except as the same may be expanded or limited by the board
of directors from time to time.
5.7 Assistant Secretary. The assistant secretary, if any, or, if there
are more than one, the assistant secretaries shall, under the supervision of the
secretary, perform such duties and have such authority as may be prescribed from
time to time by the board of directors or the secretary. Upon the death, absence
or disability of the secretary, the assistant secretary, if any, or, if there
are more than one, the assistant secretary in the order designated by the board
of directors or the secretary (or, if no such determination is made, in the
order of their appointment), shall have the authority and duties of the
secretary.
5.8 Treasurer. The treasurer shall have control of the funds and the
care and custody of all stocks, bonds and other securities owned by the
Corporation, and shall be responsible for the preparation and filing of tax
returns. The treasurer shall receive all monies paid to the Corporation and,
subject to any limits imposed by the board of directors, shall have authority to
receive 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 monies and other valuable effects in the
name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors. The treasurer shall have such additional
authority and duties as are appropriate and customary for the office of
treasurer, except as the same may be expanded or limited by the board of
directors from time to time.
5.9 Assistant Treasurer. The assistant treasurer, if any, or, if there
are more than one, the assistant treasurers shall, under the supervision of the
treasurer, have such authority and duties as may be prescribed from time to time
by the board of directors or the treasurer. Upon the death, absence or
disability of the treasurers, the assistant treasurer, if any, or if there are
more than one, the assistant treasurers in the order determined by the board of
directors or the treasurer (of, if no such determination is made, in the order
of their appointment), shall have the authority and duties of the treasurer.
5.10 Compensation. Officers shall receive such compensation for their
services as may be authorized or ratified by the board of directors. Election or
appointment of an officer shall not of itself create a contractual right to
compensation for services performed as such officer.
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ARTICLE VI
INDEMNIFICATION
6.1 Definitions. As used in this Article VI:
(a) "Corporations" 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 Section 6.7, the office in
the Corporation held by the officer or the employment, fiduciary or agency
relationship undertaken by the employee, fiduciary or agent on behalf of the
Corporation. "Official capacity" does not include service for any other domestic
or foreign corporation or other person or employee benefit plan.
(f) "Party" includes a person who was, is or is threatened to
be made, a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
6.2 Authority to Indemnify Directors.
(a) Except as provided in Section 6.2(d), the Corporation
shall indemnify a person made a party to a proceeding because the person is or
was a director against liability incurred in the proceeding if:
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(i) The person conducted himself or herself in good
faith; and
(ii) The person reasonably believed:
(A) In the case of conduct in an official
capacity with the Corporation, that his or her conduct was in the Corporation's
best interests; and
(B) In all other cases, that his or her
conduct was at least not opposed to the Corporation's best interests; and
(iii) In the case of any criminal proceeding, the
person had no reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to any employee benefit
plan for a purpose the director reasonably believed to be in the interests of
the participants in or beneficiaries of the plan is conduct that satisfies the
requirement of Section 6.2(a)(ii)(B). A director's conduct with respect to an
employee benefit plan for a purpose that the director did not reasonably believe
to be in the interests of the participants in or beneficiaries of the plan shall
be deemed not to satisfy the requirements of Section 6.2(a)(i).
(c) The termination of a proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the standard of
conduct described in this Section 6.2.
(d) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation may not indemnify a director under this Section
6.2:
(i) In connection with a proceeding by or in the
right of the Corporation in which the director was adjudged liable to the
Corporation; or
(ii) In connection with any other proceeding charging
that the director derived an improper personal benefit, whether or not involving
action in an official capacity, in which proceeding the director was adjudged
liable on the basis that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Section 6.2 in
connection with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
6.3 Mandatory Indemnification of Directors. The Corporation shall
indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which
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the person was a party because the person is or was a director, against
reasonable expenses incurred by him or her in connection with the proceeding.
6.4 Advance of Expenses to Directors.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(i) The director furnishes to the Corporation a
written affirmation of the director's good faith belief that he or she has met
the standard of conduct described in Section 6.2.
(ii) The director furnishes to the Corporation a
written undertaking, executed personally or on the director's behalf, to repay
the advance if it is ultimately determined that he or she did not meet the
standard of conduct; and
(iii) A determination is made that the facts then
known to those making the determination would not preclude indemnification under
this Article VI.
(b) The undertaking required by Section 6.4(a)(ii) shall be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this
Section 6.4 shall be made in the manner specified in Section 6.6.
6.5 Court-Ordered Indemnification of Directors. A director who is or
was a party to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court, after giving any notice the court
considers necessary, may order indemnification in the following manner:
(i) If it determines that the director is entitled to
mandatory indemnification under Section 6.3, the court shall order
indemnification, in which case the court shall also order the Corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification.
(ii) If it determines that the director is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director met the standard of conduct set forth
in Section 6.2(a) or was adjudged liable in the circumstances described in
Section 6.2(d), the court may order such indemnification as the court deems
proper; except that the indemnification with respect to any proceeding in which
liability shall have been adjudged in the circumstances described in Section
6.2(d) is limited to reasonable expenses incurred in connection with the
proceeding and reasonable expenses incurred to obtain court ordered
indemnification.
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6.6 Determination and Authorization of Indemnification of Directors.
(a) Except to the extent authorized by a court as provided in
Section 6.5, the Corporation shall not indemnify a director under Section 6.2
unless authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because the
director has met the standard of conduct set forth in Section 6.2. The
Corporation shall not advance expenses to a director under Section 6.4 unless
authorized in the specific case after written affirmation and undertaking
required by Section 6.4(a)(i) and 6.4(a)(ii) are received and the determination
required by Section 6.4(a)(iii) has been made.
(b) The determinations required by Section 6.6(a) shall be
made:
(i) By the board of directors by a majority vote of
those present at a meeting at which a quorum is present, and only those
directors not parties to the proceeding shall be counted in satisfying the
quorum; or
(ii) If a quorum cannot be obtained, by a majority
vote of a committee of the board of directors designated by the board of
directors, which committee shall consist of two or more directors not parties to
the proceeding; except that directors who are parties to the proceeding may
participate in the designation of directors for the committee.
(c) If a quorum cannot be obtained as contemplated in Section
6.6(b)(i), and a committee cannot be established under Section 6.6(b)(ii), or
even if a quorum is obtained or a committee is designated, if a majority of the
directors constituting such quorum or such committee so directs, the
determination required to be made by Section 6.6(a) shall be made.
(i) By independent legal counsel selected by a vote
of the board of directors or the committee in the manner specified in Section
6.6(b)(i) or 6.6(b)(ii), or, if a quorum of the full board cannot be obtained
and a committee cannot be established, by independent legal counsel selected by
a majority vote of the full board of directors; or
(ii) By the shareholders.
(d) Authorization of indemnification and advance of expenses
shall be made in the same manner as the determination that indemnification or
advance of expenses is permissible; except that, if the determination that
indemnification or advance of expenses is required or permissible is made by
independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected such counsel.
6.7 Indemnification of Officers, Employees, Fiduciaries and Agents.
(a) The Corporation may indemnify and advance expenses to an
officer to the same extent as a director.
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(b) The Corporation may indemnify and advance expenses to an
employee, fiduciary or agent of the Corporation to the same extent as to a
director.
(c) The Corporation may also indemnify and advance expenses to
an officer, employee, fiduciary or agent who is not a director to a greater
extent than is provided in these bylaws, if not inconsistent with public policy,
and if provided for by general or specific action of its board of directors of
shareholders or by contract.
6.8 Insurance. The Corporation may purchase and maintain insurance on
behalf of a person who is or was a director, officer, employee, fiduciary or
agent of the Corporation or who, while a director, officer, employee, fiduciary
or agent of the Corporation, is or was serving at the request of the Corporation
as a director, partner, officer, 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 Sections 6.2, 6.3, or 6.7. Any such insurance
may be procured from any insurance company designated by the board of directors,
whether such insurance company is formed under the laws of this state or any
other jurisdiction of the United States or elsewhere, including any insurance
company in which the Corporation has an equity or any other interest through
stock ownership or otherwise.
6.9 Notice to Shareholders of Indemnification of Director. If the
Corporation indemnifies or advances expenses to a director under this Article VI
in connection with a proceeding by or in the right of the Corporation, the
Corporation shall give written notice of the indemnification or advance to the
shareholders with or before the notice of the next shareholders meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII
SHARES
7.1 Certificates. Certificates representing shares of the capital stock
of the Corporation shall be in such form as is approved by the board of
directors and shall be signed by the chairman or vice chairman of the board of
directors (if any), or the president or any vice president, and by the secretary
or an assistant secretary or the treasurer or an assistant treasurer. All
certificates shall be consecutively numbered, and the names of 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;
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(a) that the Corporation is organized under the laws of the
State of Colorado;
(b) the name of the person to whom the shares are issued;
(c) the number and class of the shares and the designation of
the series, if any, that the certificate represents;
(d) the par value, if any, of each share represented by the
certificate;
(e) on the front or the back, (i) a summary of the
designations, preferences, limitations and relative rights applicable to each
class, the variations in preferences, limitations and rights determined for each
series, and the authority of the board of directors to determine variations for
future classes or series; or (ii) a conspicuous statement that the Corporation
will furnish to the shareholder, on request in writing and without charge,
information concerning the designations, preferences, limitations and relative
rights applicable to each claim, the variations in preferences, limitations and
rights determined for each series, and the authority of the board of directors
to determine variations for future classes or series; and
(f) any restrictions imposed by the Corporation upon the
transfer of the shares represented by the certificate.
7.2 Facsimile Signatures. Where a certificate is signed (a) by a
transfer agent other than the Corporation or its employee, or (b) by a registrar
other than the Corporation or its employee, any or all of the officers'
signatures on the certificate required by Section 7.1 may be by facsimile. If
any officer, transfer agent or registrar who has signed, or whose facsimile
signature or signatures have been placed upon, any certificate, shall cease to
be such officer, transfer agent or registrar, whether because of death,
resignation or otherwise, before the certificate is issued by the Corporation,
it may nevertheless be issued by the Corporation with the same effect as if he
or she were such officer, transfer agent or registrar at the date of issue.
7.3 Transfers of Shares. Transfers of shares shall be made on the books
of the Corporation only upon presentation of the certificate or certificates
representing such shares properly endorsed by the person or persons appearing
upon the face of such certificate to be the owner, or accompanied by a proper
transfer or assignment separate from the certificates except as may otherwise be
expressly provided by the statutes of the State of Colorado or by order of a
court of competent jurisdiction. The officers or transfer agents of the
Corporation may, in their discretion, require a signature guaranty before making
any transfer. Except to the extent the Corporation otherwise provides pursuant
to Section 7.4 and except for the assertion of dissenters' rights to the extent
provided in Article 113 of the Act, the Corporation shall be entitled to treat
the person in whose name any shares are registered on its books as the owner of
those shares for all purposes and
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shall not be bound to recognize any equitable or other claim or interest in the
shares on the part of any other person, whether or not the Corporation shall
have notice of such claim or interest.
7.4 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 clarification of shareholders who may certify;
(b) the purpose or purposes for which the certification may be
made;
(c) the form of certification and the information to be
contained therein;
(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.
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ARTICLE VIII
GENERAL
8.1 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.
8.2 Fiscal Year. The board of directors may, by resolution, adopt a
fiscal year for the Corporation.
8.3 Receipt of Notices by the Corporation. Notices, shareholder
writings consenting to an action, and other documents or writings shall be
deemed to have been received by the Corporation when they are received:
(a) at the registered office of the Corporation in the State
of Colorado;
(b) at the principal office of the Corporation (as that office
is designated in the most recent document filed by the Corporation with the
Secretary of State for the State of Colorado designating a principal office)
addressed to the attention of the secretary of the Corporation;
(c) by the secretary of the Corporation wherever the secretary
may be found; or
(d) by any other person authorized from time to time by the
board of directors, the president or the secretary to move such writings, when
such person is found.
8.4 Amendment of Bylaws. These Bylaws may at any time and from time to
time be amended, supplemented or repealed by the board of directors.
The undersigned, being the duly elected Secretary of the Corporation,
hereby certifies that the foregoing Bylaws were duly adopted by the Board of
Directors on the 11th day of September 2000.
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David K. Moskowitz
Secretary
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