1
EXHIBIT 3.5
BYLAWS
OF
CEX HOLDINGS, INC.
ARTICLE I
Offices and Agents
1. Principal Office. The principal office of the
Corporation shall be located within or without the State of Colorado, as may be
subsequently designated by the Board of Directors. The Corporation may have
other offices and places of business at such places within or without the State
of Colorado as shall be determined by the directors or as the business of the
Corporation may require from time to time.
2. Registered Office. The registered office of the
Corporation required by the Colorado Business Corporation Act must be
continually maintained in the State of Colorado, and it may be, but need not be,
identical with the principal office, if located in the State of Colorado. The
address of the registered office of the Corporation may be changed from time
to time, as provided by the Colorado Business Corporation Act.
3. Registered Agent. The Corporation shall maintain a
registered agent in the State of Colorado as required by the Colorado Business
Corporation Act. Such registered agent may be changed from time to time as
provided by the Colorado Business Corporation Act.
ARTICLE II
Shareholders Meetings
1. Annual Meetings. The annual meeting of the
shareholders shall be held for the purpose of electing directors and
transacting such other corporate business as may come before the meeting. The
date, time and place of the annual meeting shall be determined by resolution of
the Board of Directors. If the election of directors is not held as provided
herein at any annual meeting of the shareholders, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a
special meeting of the shareholders as soon thereafter as it may conveniently
be held.
Notice of an annual meeting need not include a description of
the purpose or purposes of the meeting except when the purpose of the meeting
is to consider (i) an amendment to the Articles of Incorporation of the
Corporation, (ii) a merger or share exchange in which the
2
Corporation is a party and, with respect to a share exchange, in which the
Corporation's shares will be acquired, (iii) the sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the Corporation or of another entity which
the Corporation controls, in each case with or without goodwill, (iv) the
dissolution of the Corporation or (v) any other purpose for which a statement
of purpose is required by the Colorado Business Corporation Act.
2. Special Meetings. Unless otherwise prescribed by
the Colorado Business Corporation Act, special meetings of the shareholders of
the Corporation may be called at any time by the chairman of the Board of
Directors, by the chief executive officer, by the president, by resolution of
the Board of Directors or upon receipt of one or more written demands for a
meeting, stating the purpose or purposes for which it is to be held, signed and
dated by the holders of at least ten percent (10%) of all votes entitled to be
cast on any issue proposed to be considered at the meeting. Notice of a special
meeting shall include a description of the purpose or purposes for which the
meeting is called.
3. Place of Meeting. The annual meeting of the
shareholders of the Corporation may be held at any place, either within or
without the State of Colorado, as may be designated by the Board of Directors.
Except as limited by the following sentence, the person or persons calling any
special meeting of the shareholders may designate any place, within or without
the State of Colorado, as the place for the meeting. If no designation is made
or if a special meeting shall be called other than by the Board of Directors,
the chairman of the Board of Directors, the chief executive officer or the
president, the place of meeting shall be the principal office of the
Corporation. A waiver of notice signed by all shareholders entitled to vote at
a meeting may designate any place as the place for holding such meeting.
4. Notice of Meeting. Except as otherwise provided in
these Bylaws or by the Colorado Business Corporation Act, notice stating the
date, time and place of the meeting shall be given no fewer than ten (10) and
no more than sixty (60) days before the date of the meeting, except that if the
number of authorized shares is to be increased, at least thirty (30) days'
notice shall be given. Notice shall be given personally or by mail, private
carrier, telephone (if reasonable under the circumstances), telegraph,
teletype, electronically transmitted facsimile or other form of wire or
wireless communication by or at the direction of the chief executive officer,
the president, the secretary, or the officer or other person calling the
meeting to each shareholder of record entitled to vote at such meeting. If
mailed and if in a comprehensible form, such notice shall be deemed to be given
and effective when deposited in the United States mail, addressed to the
shareholder at his or her address as it appears in the Corporation's current
record of shareholders, with postage prepaid. If notice is given other than by
mail, and provided that the notice is in comprehensible form, the notice is
given and effective on the date received by the shareholder. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such
2
3
time as another address for such shareholder is made known to the Corporation
by such shareholder.
When a meeting is adjourned to a different date, time or
place, notice need not be given of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 120
days, or if a new record date is fixed for the adjourned meeting, a new notice
of the adjourned meeting shall be given to each shareholder of record entitled
to vote at the meeting as of the new record date.
5. Waiver of Notice. Any shareholder, either before,
or after any shareholders' meeting, may waive in writing notice of the meeting,
and his waiver shall be deemed the equivalent of giving notice. By attending a
meeting, a shareholder waives his right to object to lack of notice or to a
defective notice unless the shareholder objects to the holding of such meeting
or the transacting of business at such meeting at the beginning of such
meeting, and waives his right to object to consideration at such meeting of a
particular matter not within the purpose or purposes described in the meeting
notice, unless such shareholder objects to considering the matter when it is
presented.
6. Fixing of Record Date. The Board of Directors of
the Corporation may provide that the stock transfer books shall be closed for a
stated period, but not to exceed, in any case, fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders such books shall
be closed for at least ten (10) days immediately preceding said meeting. The
Board of Directors may fix in advance a date as the record date for the purpose
of determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend or in order to make a determination of shareholders for
any other proper purpose, such date in any case to be not more than seventy
(70) days and, in case of a meeting of shareholders, not less than ten (10)
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a meeting
of shareholders or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section such determination shall
apply to any adjournment thereof.
Notwithstanding the foregoing, the record date for determining
the shareholders entitled to take action without a meeting or entitled to be
given notice of action so taken shall be the date a writing upon which the
action is taken is first received by the Corporation. The
3
4
record date for determining shareholders entitled to demand a special meeting
shall be the date of the earliest of the demands pursuant to which the meeting
is called.
7. Voting List. The officer or agent having charge of
the stock transfer books for share of the Corporation shall make, at least ten
(10) days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting (or any adjournment thereof)
arranged in alphabetical order by voting groups and within each voting group by
class or series, with the address of and the number of shares held by each,
which list, for a period of ten (10) days prior to such meeting, shall be kept
on file at the principal office of the Corporation, whether within or without
the State of Colorado. A shareholder, his agent or attorney may inspect and
copy the list during regular business hours and during the period it is
available for inspection, provided, (i) the shareholder has been a shareholder
for at least three (3) months immediately preceding the demand or holds at
least five percent (5%) of all outstanding shares of any class of shares as the
date of the demand, (ii) the demand is made in good faith and for a purpose
reasonably related to the demanding shareholder's interest as a shareholder,
(iii) the shareholder describes with reasonable particularity the purpose and
records the shareholder desires to inspect, (iv) the records are directly
connected with the described purpose and (v) the shareholder pays a reasonable
charge covering the costs of labor and material for such copies, not to exceed
the cost of production and reproduction. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder for any purpose germane to the meeting during the
whole time of the meeting. The original stock transfer books shall be prima
facie evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders.
8. Proxies. At all meetings of shareholders, a
shareholder may vote by proxy by signing an appointment form either personally
or by his duly authorized attorney-in-fact. A shareholder may also appoint a
proxy by transmitting or authorizing the transmission of a telegram, teletype,
or other electronic transmission providing a written statement of the
appointment to the proxy, to a proxy solicitor, proxy support service
organization or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the Corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from which
it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form shall be filed with
the Secretary of the Corporation by or at the time of the meeting. The
appointment of a proxy is effective when received by the Corporation and is
valid for eleven (11) months unless a different period is expressly provided in
the appointment form.
Any complete copy, including an electronically transmitted
facsimile, of an appointment of a proxy may be substituted for or used in lieu
of the original appointment for any purpose for which the original appointment
could be used.
4
5
Revocation of a proxy does not affect the right of the
Corporation to accept the proxy's appointment unless (i) the Corporation had
notice that the appointment was coupled with an interest and notice that the
interest is extinguished is received by the Secretary or other officer or
agent authorized to tabulate votes before the proxy exercises his authority
under the appointment or (ii) other notice of the revocation of the appointment
is received by the Secretary or other officer or agent authorized to tabulate
votes before the proxy exercises his authority under the appointment. Other
notice of revocation may, in the discretion of the Corporation, be deemed to
include the appearance at a shareholders meeting of the shareholder who granted
the proxy appointment and his voting in person on any matter subject to a vote
at such meeting.
The death or incapacity of the shareholder appointing a proxy
does not affect the right of the Corporation to accept the proxy's authority
unless notice of the death or incapacity is received by the Secretary or other
officer or agent authorized to tabulate votes before the proxy exercised his
authority under the appointment.
The Corporation shall not be required to recognize an
appointment made irrevocable if it has received a writing revoking the
appointment signed by the shareholder either personally or by the shareholder's
attorney-in-fact notwithstanding that the revocation may be a breach of an
obligation of the shareholder to another person not to revoke the appointment.
A transferee for value of shares subject to an irrevocable
appointment may revoke the appointment if the transferee did not know of its
existence when he acquired the shares and the irrevocable appointment was not
noted on the certificate representing the shares.
Subject to the provisions of Article II, Section 10 below or
any express limitation on the proxy's authority appearing on the appointment
form, a corporation is entitled to accept the proxy's vote or other action as
that of the shareholder making the appointment.
9. Voting Rights. Except to the extent that the voting
rights of the shares of any class or series are otherwise established, limited
or denied by the Articles of Incorporation and except as otherwise required by
law, each outstanding share, regardless of class, shall be entitled to one vote
and each fractional share is entitled to a corresponding fractional vote on
each matter submitted to a vote at a meeting of shareholders.
At each election for directors every shareholder of record
entitled to vote at such election shall have the right to vote in person or by
proxy the number of votes to which such shareholder is entitled for as many
persons as there are directors to be elected and for whose election he has a
right to vote. Cumulative voting shall not be permitted for any purpose.
Shares held by another corporation, if the majority of shares
entitled to vote for the election of directors of such other corporation are
held by the Corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares entitled to vote
5
6
at any given time. Except as provided in the preceding sentence, shares
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent or proxy as the Bylaws of such corporation may prescribe
or, in the absence of such provision, as the Board of Directors of such
corporation may determine, or in the absence of such determination, by the
chief executive officer of such corporation.
If shares having voting power stand of record in the names of
two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same shares,
voting with respect to the shares shall have the following effect: (i) if only
one person votes, his act binds all; (ii) if two or more persons vote, but the
vote is evenly split on any particular matter, each faction may vote the shares
in question proportionately, or any person voting the shares of a beneficiary,
if any, may apply to any court of competent jurisdiction in the State of
Colorado to appoint an additional person to act with the persons voting the
shares. The shares shall then be voted as determined by a majority of such
persons and the person appointed by the court. If a tenancy is held in
unequal interests, a majority or even split for the purpose of this subsection
shall be a majority or even split in interest, except that the effects of
voting stated above shall not be applicable if the secretary of the Corporation
is given written notice of alternative voting provisions and is furnished with
a copy of the instrument or order wherein the alternate voting provisions are
stated.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him without a transfer of such shares into his
name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted
by such receiver without the transfer thereof into his name if authority so to
do be contained in an appropriate order of the court by which such receiver was
appointed.
10. Corporation's Acceptance of Votes. If the name signed
on a vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the Corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment, or
proxy appointment revocation and to give it effect as the act of the
shareholder. If the name signed on a vote, consent, waiver, proxy appointment,
or proxy appointment revocation does not correspond to the name of a
shareholder, the Corporation, if acting in good faith, is nevertheless entitled
to accept the vote, consent, waiver, proxy appointment, or proxy appointment
revocation and to give it effect as the act of the shareholder if:
6
7
(a) The shareholder is an entity and the name signed
purports to be that of an officer or agent of the entity;
(b) The name signed purports to be that of an
administrator, executor, guardian, or conservator representing the shareholder
and, if the Corporation requests, evidence of fiduciary status acceptable to
the Corporation has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation has been presented with
respect to the vote, consent, waiver, proxy appointment or proxy appointment
revocation;
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder has been presented with respect to the
vote, consent, waiver, proxy appointment or proxy appointment revocation;
(e) Two or more persons are the shareholder as cotenants
or fiduciaries and the name signed purports to be the name of at least one of
the cotenants or fiduciaries and the person signing appears to be acting on
behalf of all the cotenants or fiduciaries; or
(f) The acceptance of the vote, consent, waiver, proxy
appointment or proxy appointment revocation is otherwise proper under rules
established by the Corporation that are not inconsistent with the provisions of
this Section 10.
The Corporation is entitled to reject a vote, consent, waiver,
proxy appointment, or proxy appointment revocation if the secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or about
the signatory's authority to sign for the shareholder.
The Corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section
10 are not liable in damages for the consequences of the acceptance or
rejection.
11. Quorum and Voting Requirements. Except as otherwise
provided in the Articles of Incorporation, the presence, in person or by proxy,
of the holders of a majority of the shares outstanding and entitled to vote
shall constitute a quorum at meetings of the shareholders. If a quorum is
present, the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
shareholders unless the vote of a greater number or voting by classes is
required by the Colorado Business.
7
8
Corporation Act or the Articles of Incorporation. In the event any shareholders
withdraw from a duly organized meeting at which a quorum was initially present,
the remaining shares represented shall constitute a quorum for the purpose of
continuing to do business, and the affirmative vote of the majority of the
remaining shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the shareholders unless the vote of a greater number
or voting by classes is required by the Colorado Business Corporation Act or
the Articles of Incorporation.
12. Adjournments. If less than a quorum of shares
entitled to vote is represented at any meeting of the shareholders, a majority
of the shares so represented may adjourn the meeting from time to time without
further notice, for a period not to exceed one hundred twenty (120) days at any
one adjournment. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. Any meeting of the
shareholders may adjourn from time to time until its business is completed.
13. Action by Shareholders Without Meeting. Any
action required or permitted to be taken at a shareholders' meeting may be
taken without a meeting if all of the shareholders entitled to vote thereon
consent to such action in writing. Action taken under this Section 13 shall be
effective as of the date the last writing necessary to effect the action is
received by the Corporation, unless all of the writings necessary to effect the
action specify a later date as the effective date of the action, in which case
such later date shall be the effective date of the action. If the Corporation
received writings describing and consenting to the action signed by all of the
shareholders entitled to vote with respect to the action, the effective date of
the action may be any date that is specified in all of the writings as the
effective date of the action. Any such writings may be received by the
Corporation by electronically transmitted facsimile or other form of wire or
wireless communication providing the Corporation with a complete copy thereof,
including a copy of the signature thereto. Action taken under this Section 13
has the same effect as action taken at a meeting of shareholders and may be
described as such in any document.
Any shareholder who has signed a writing describing and
consenting to action taken pursuant to this Section 13 may revoke such consent
by a writing signed by the shareholder describing the action and stating that
the shareholder's prior consent thereto is revoked, but only if such writing is
received by the Corporation before the effectiveness of the action.
14. Meetings by Telecommunication. Any or all of the
shareholders may participate in an annual or special shareholders' meeting by,
or the meeting may be conducted through 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.
8
9
ARTICLE III
Board of Directors
1. Number, Qualifications and Term of Office. Except as
otherwise provided in the Articles of Incorporation or the Colorado Business
Corporation Act, the business and affairs of the Corporation shall be managed
by a Board of Directors, consisting of at least one (1), but not more than
seven (7), members. Each director shall be a natural person of the age of
eighteen years or older, but does not need to be a resident of the State of
Colorado or a shareholder of the Corporation. The Board of Directors, by
resolution, may increase or decrease the number of directors from time to time.
Except as otherwise provided in these Bylaws, each director shall be elected at
each annual meeting of shareholders and shall hold such office until the next
annual meeting of shareholders and until his successor shall be elected and
shall qualify. No decrease in the number of directors shall have the effect of
shortening the term of any incumbent director.
2. Performance of Duties. Pursuant to the provisions
of the Colorado Business Corporation Act, a director shall perform his duties
as a director, including his duties as a member of any committee of the Board
upon which he may serve, in good faith, in a manner he reasonably believes to
be in the best interests of the Corporation, and with such care as an
ordinarily prudent person in a like position would use under similar
circumstances.
3. Vacancies. Any director may resign at any time by
giving written notice to the chairman of the Board of Directors and to the
chief executive officer, president or secretary of the Corporation. A
resignation of a director is effective when the notice is received by the
Corporation unless the notice specifies a later effective date. Unless
otherwise specified in the notice, the acceptance of such resignation by the
Corporation shall not be necessary to make it effective. Any vacancy on the
Board of Directors may be filled by the affirmative vote of a majority of the
remaining Board of Directors even if less than a quorum is remaining in office.
A director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. Any directorship to be filled by reason of an
increase in the number of directors shall be filled by the affirmative vote of
a majority of the directors then in office or by an election at an annual
meeting or special meeting of shareholders called for that purpose. A director
elected to fill a position resulting from an increase in the number of
directors shall hold office until the next annual meeting of shareholders and
until his or her successor has been elected and qualified.
4. Removal. At a meeting of shareholders called
expressly for that purpose, the entire Board of Directors or any individual
directors may be removed from office without assignment of cause by the vote of
the majority of the shares entitled to vote an election of directors.
9
10
5. Removal of Directors by Judicial Proceeding. A
director may be removed by the District Court of the Colorado county where the
principal office is located or if the Corporation has no principal office in
the State of Colorado, by the District Court of the Colorado county in which
its registered office is located, upon a finding by the District Court that the
director engaged in fraudulent or dishonest conduct or gross abuse of authority
or discretion with respect to the Corporation and that removal is in the best
interests of the Corporation. The judicial proceeding may be commenced either
by the Corporation or by shareholders holding at least ten percent (10%) of the
outstanding shares of any class.
6. Compensation. By resolution of the Board of
Directors, any director may be paid any one or more of the following: his
expenses, if any, of attendance at meetings; a fixed sum for attendance at each
meeting; a stated salary as director; or such other compensation as the
Corporation and the director may reasonably agree upon. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
Meetings of the Board
1. Place of Meetings. The regular or special meetings
of the Board of Directors or of any committee designated by the Board shall be
held at the principal office of the Corporation or at any other place within or
without the State of Colorado that a majority of the Board of Directors or of
any such committee, as the case may be, may designate from time to time by
resolution.
2. Regular Meetings. The Board of Directors shall
meet each year immediately before or after and at the same place as the annual
meeting of the shareholders for the purpose of electing officers and
transacting such other business as may come before the meeting. The Board of
Directors or any committee designated by the Board may provide, by resolution,
for the holding of additional regular meetings without other notice than such
resolution.
3. Special Meetings. Special meetings of the Board of
Directors or of any committee designated by the Board may be called at any time
by the chairman of the Board, if any, by the chief executive officer, or by
three or more members of the Board of Directors or of any such committee, as
the case may be, provided that if any such committee consists of less than four
members, then a special meeting of such committee may be called by a majority
of the members thereof.
10
11
4. Notice of Meetings. Notice of the regular meetings
of the Board of Directors or of any committee designated by the Board need not
be given. Except as otherwise provided by these Bylaws or the laws of the State
of Colorado, written notice of each special meeting of the Board of Directors
or of any such committee setting forth the time and the place of the meeting
shall be given to each director not less than one (1) day prior to the date and
time fixed for the meeting. Notice of any special meeting may be either
personally delivered or mailed to each director at his business address, by
telephone (if reasonable under the circumstances) or by notice transmitted by
telegraph, telex, electronically transmitted facsimile or other form of wire or
wireless communication. If mailed, such notice shall be deemed to be given and
to be effective on the earlier of (i) three (3) days after such notice is
deposited in the United States mail properly addressed, with postage prepaid,
or (ii) the date shown on the return receipt if mailed by registered or
certified mail return receipt requested. If notice be given by telephone (if
reasonable under the circumstances), telex, electronically transmitted
facsimile or other similar form of wire or wireless communication, such notice
shall be deemed to be given and to be effective when sent, and with respect to
a telegram, such notice shall be deemed to be given and to be effective when
the telegram is delivered to the telegraph company. If a director has
designated in writing one or more reasonable addresses or facsimile numbers
for delivery of notice to him, notice sent by mail, telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
5. Waiver of Notice. A director may, in writing, waive
notice of any special meeting of the Board of Directors or of any committee
designated by the Board either before, at, or after the meeting and his waiver
shall be deemed the equivalent of giving notice. Such waiver shall be delivered
to the Corporation for filing with the corporate records. Attendance or
participation of a director at a meeting waives any required notice of that
meeting unless at the beginning of the meeting or promptly upon the director's
arrival, the director objects to holding the meeting or transacting business at
the meeting because of lack of notice or defective notice and does not
thereafter vote for or assent to action taken at the meeting.
6. Quorum. At meetings of the Board of Directors or of
any committee designated by the Board a majority of the number of directors
fixed by these Bylaws, or a majority of the members of any such committee, as
the case may be, shall be necessary to constitute a quorum for the transaction
of business. If the number of directors is not fixed, then a majority of the
number in office immediately before the meeting begins, shall constitute
a quorum. If a quorum is present, the act of the majority of directors present
shall be the act of the Board of Directors or of any such committee, as the
case may be, unless the act of a greater number is required by these Bylaws,
the Articles of Incorporation or the Colorado Business Corporation Act.
11
12
7. Presumption of Assent. A director who is present at
a meeting of the Board of Directors or a committee thereof when action is taken
is deemed to have assented to the action taken unless:
(a) the director objects at the beginning of such meeting
or promptly upon his arrival, to the holding of the meeting or the transacting
of business at the meeting and does not thereafter vote for or assent to any
action taken at the meeting;
(b) the director contemporaneously requests that his
dissent or abstention as to any specific action taken be entered in the minutes
of such meeting; or
(c) the director causes written notice of his dissent or
abstention as to any specific action to be received by the chairman of the
Board, if any, or the presiding officer of such meeting before its adjournment
or to the secretary within 15 minutes after adjournment of such meeting.
The right of dissent or abstention as to a specific action
taken in a meeting of a Board or a committee thereof is not available to a
director who votes in favor of the action taken.
8. Executive Committee; Other Committees. The Board of
Directors may, by a resolution adopted by a majority of the full Board of
Directors, designate one (1) or more of its members to constitute an executive
committee and one or more other committees, each of which shall have and may
exercise all of the authority of the Board of Directors or such lesser authority
as may be set forth in said resolution; except that no such committee shall have
the authority of the Board of Directors to: (i) declare dividends or
distributions; (ii) approve or recommend to shareholders actions or proposals
required by the Colorado Business Corporation Act to be approved by
shareholders; (iii) fill vacancies on the Board of Directors or any committee
thereof; (iv) amend these Bylaws; (v) approve a plan of merger not requiring
shareholder approval; (vi) reduce earned or capital surplus; (vii) authorize or
approve the reacquisition of shares unless pursuant to a general formula method
specified by the Board of Directors; or (viii) authorize or approve the issuance
or sale of, or any contract to issue or sell, shares or designate the terms of a
series of a class of shares and except that the Board of Directors, having acted
regarding general authorization for the issuance or sale of shares or any
contract therefore, may pursuant to a general formula or method specified by the
Board of Directors by resolution or by adoption of a stock option or other plan,
authorize a committee to fix the terms of any contract for the sale of the
shares and to fix the terms upon which such shares may be issued or sold,
including, without limitation, the price, the dividend rate, provisions for
redemption, sinking fund, conversion, or voting or preferential rights, and
provisions for other features of a class of shares or a series of a class of
shares, with full power in such committee to adopt any final resolution setting
forth all terms thereof and to authorize the statement of the terms of a series
for filing with the Secretary of State of the State of
12
13
Colorado under the Colorado Business Corporation Act. If any such delegation of
the authority of the Board of Directors is made as provided herein, all
references to the Board of Directors contained in these Bylaws, the Articles of
Incorporation, the Colorado Business Corporation Act or any other applicable
law or regulation relating to the authority so delegated shall be deemed to
refer to such committee.
Neither the designation of any such committee, the delegation
of authority to such committee, nor any action by such committee pursuant to
its authority shall alone constitute compliance by any member of the Board of
Directors, not a member of the committee in question, with his responsibility
to act in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances.
If the Board of Directors designates an executive or other
committee, so long as that certain Voting Agreement dated as of December 23,
1991 is in effect, at least one member of the executive committee must be
director designated by one or more of the Designating Investors or their Board
representative as defined in and pursuant to the Voting Agreement. This
provision shall terminate ab initio effective upon the termination of the
Voting Agreement.
9. Informal Action by Directors. Any action required
or permitted be taken at a Board of Directors' meeting or a meeting of any
committee thereof may be taken without a meeting if all members thereof consent
to such action in writing and such writing is delivered to the secretary of the
Corporation for inclusion in the minutes or for filing with the corporate
records. Action taken under this Section 9 is effective at the time the last
director signs a writing describing the action taken unless the directors
establish a different effective date, and unless, before such time, a director
has revoked his consent by a writing signed by the director and received by the
chief executive officer and secretary. Action taken pursuant to this Section 9
has the same effect as action taken at a meeting of the directors or committee
members and may be described as such in any document.
10. Telephonic Meetings. One or more members of the
Board of Directors or any committee designated by the Board may participate in
a regular or special meeting by or conduct the meeting through the use of any
means of communication by which all directors participating may hear each other
during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
13
14
ARTICLE V
Standards of Conduct
In discharging his duties, a director or officer is entitled
to rely on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by (i) one or
more officers or employees of the Corporation whom the director or officer
reasonably believes to be reliable and competent in the matters presented, (ii)
legal counsel, a public accountant, or other person as to matters which the
director or officer reasonably believes to be within such persons' professional
or expert competence, or (iii) in the case of a director, a committee of the
Board of Directors of which the director is not a member if the director
reasonably believes the committee merits confidence.
A director or officer is not liable as such to the Corporation
or its shareholders for any action he takes or omits to take as a director or
officer, as the case may be, if, in connection with such action or omission, he
performed the duties of the position in compliance with this Article V.
ARTICLE VI
Officers and Agents
1. General. The officers of the Corporation shall
consist of a chairman of the Board, a chief executive officer, a president and
a secretary and, in the discretion of the Board, a treasurer; in addition, one
or more vice presidents, and such other officers, assistant officers, agents
and employees that the Board of Directors may from time to time deem necessary
may be elected by the Board of Directors or be appointed in a manner prescribed
by the Board. Two or more offices may be held by the same person. Officers
shall hold office until their successors are chosen and have qualified, unless
they are sooner removed from office as provided in these Bylaws. All officers
of the Corporation shall be natural persons of the age of eighteen years or
older. Officers of the Corporation need not be residents of the State of
Colorado or directors or shareholders of the Corporation.
2. General Duties. All officers and agents of the
Corporation, as between themselves and the Corporation, shall have such
authority and shall perform such duties in the management of the Corporation as
may be provided in these Bylaws or as may be determined by resolution of the
Board of Directors not inconsistent with these Bylaws. In all cases where the
duties of any officer, agent or employee are not prescribed by the Bylaws or by
the Board of Directors, such officer, agent or employee shall follow the orders
and instructions of the chief executive officer.
14
15
3. Vacancies. When a vacancy occurs in one of the
executive offices by reason of death, resignation or otherwise, it shall
however be filled by a resolution of the Board of Directors. The officer so
selected shall hold office until his successor is chosen and qualified.
4. Salaries. The salaries of the officers, agents and
employees of the Corporation may be fixed by the Board of Directors, or by any
committee designated by the Board or, in the absence of contrary resolution or
action by the Board, by the chief executive officer.
5. Resignation. An officer may resign at any time by
giving written notice of resignation to the chief executive officer of the
Corporation. A resignation of an officer is effective when the notice is
received by the Corporation unless the notice specifies a later effective date.
If a resignation is made effective at a later date, the Board of Directors may
permit the officer to remain in office until the effective date and may fill
the pending vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the effective date, or
the Board of Directors may remove the officer at any time before the effective
date and may fill the resulting vacancy.
6. Removal. Any officer, agent or employee of this
Corporation may be removed by the Board of Directors or the chief executive
officer whenever in its judgment the best interests of the Corporation may be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an
officer, agent or employee shall not, of itself, create contract rights.
7. Chairman of the Board. The chairman of the Board, if
any, shall preside as chairman at meetings of the shareholders and the Board of
Directors. He shall, in addition, have such other duties as the Board may
prescribe that he perform. At the request of the chief executive officer, the
chairman of the Board may, in the case of the chief executive officer's absence
or inability to act, temporarily act in his place. In the case of death of the
chief executive officer or in the case of his absence or inability to act
without having designated the chairman of the Board to act temporarily in his
place, the chairman of the Board shall perform the duties of the chief executive
officer, unless the Board of Directors, by resolution, provides otherwise. If
the chairman of the Board shall be unable to act in place of the chief executive
officer, the president may exercise such powers and perform such duties as
provided below.
8. Chief Executive Officer. The chief executive
officer shall, subject to the direction and supervision of the Board of
Directors, be the most senior officer of the Corporation and shall have
primary, general and active control of its affairs and business and general
supervision of its officers, agents and employees. He shall have authority to
expend Corporation funds, to incur debt on behalf of the Corporation, and to
acquire and dispose of property, real and personal, tangible and intangible. In
the event the position of chairman of the Board shall not be occupied or the
chairman shall be absent or otherwise unable to act, the
15
16
chief executive officer shall preside at meetings of the shareholders and
directors and shall discharge the duties of the presiding officer. He shall,
unless otherwise directed by the Board of Directors, attend in person or by
substitute appointed by him, or shall execute on behalf of the Corporation
written instruments appointing a proxy or proxies to represent the Corporation
at all meetings of the shareholders of any other corporation in which the
Corporation shall hold any stock. He may, on behalf of the Corporation, in
person or by substitute or by proxy, execute written waivers of notice and
consents with respect to any such meetings. At all such meetings and
otherwise, the chief executive officer, in person or by substitute or by proxy
as aforesaid, may vote the stock so held by the Corporation and may execute
written consents and other instruments with respect to such stock and may
exercise any and all rights and powers incident to the ownership of said stock,
subject however to the instructions, if any, of the Board of Directors. The
chief executive officer shall have custody of the treasurer's bond, if any.
9. President. The president shall assist the chief
executive officer, as directed by the Board of Directors or the chief executive
officer, and shall perform such duties as may be assigned to him from time to
time by the Board of Directors or the chief executive officer. If the office of
chief executive officer is vacant, the president shall have the powers and
perform the duties of chief executive officer until such vacancy is filled by
the Board of Directors.
10. Vice Presidents. Each vice president shall have
such powers and perform such duties as the Board of Directors may from time to
time prescribe or as the chief executive officer may from time to time delegate
to him. At the request of the chief executive officer, in the case of the
president's absence or inability to act, any vice president may temporarily act
in the president's place. In the case of the death of the president, or in the
case of his absence or inability to act without having designated a vice
president or vice presidents to act temporarily in his place, the Board of
Directors, by resolution, may designate a vice president or vice presidents, to
perform the duties of the president.
11. Secretary. The secretary shall keep or cause to be
kept in books, provided for that purpose, the minutes of the meetings of the
shareholders, executive committee, if any, and any other committees, and of the
Board of Directors; shall see that all notices are duly given in accordance
with the provisions of these Bylaws and as required by law; shall be custodian
of the records and of the seal of the Corporation and see that the seal is
affixed to all documents, the execution of which on behalf of the Corporation
under its seal is duly authorized and in accordance with the provisions of
these Bylaws; and, in general, shall perform all duties incident to the office
of secretary and such other duties as may, from time to time, be assigned to
him by the Board of Directors or by the president. In the absence of the
secretary or his inability to act, the assistant secretaries, if any, shall act
with the same powers and shall be subject to the same restrictions as are
applicable to the secretary.
12. Treasurer. The treasurer shall have custody of
corporate funds and securities. He shall keep full and accurate accounts of
receipts and disbursements and shall
16
17
deposit all corporate monies and other valuable effects in the name and to the
credit of the Corporation in the depository or depositories of the Corporation,
and shall render an account of his transactions as treasurer and of the
financial condition of the Corporation to the chief executive officer,
president and/or the Board of Directors upon request. Such power given to the
treasurer to deposit and disburse funds shall not, however, preclude any other
officer or employee of the Corporation from also depositing and disbursing
funds when authorized to do so by the Board of Directors. The treasurer shall,
if required by the Board of Directors, give the Corporation a bond in such
amount and with such surety or sureties as may be ordered by the Board of
Directors for the faithful performance of the duties of his office. The
treasurer shall have such other powers and perform such other duties as may be
from time to time prescribed by the Board of Directors or the chief executive
officer or such other person appointed from time to time by the chief executive
officer. In the absence of the treasurer or his inability to act, the assistant
treasurers, if any, shall act with the same authority and shall be subject to
the same restrictions as are applicable to the treasurer.
13. Delegation of Duties. Whenever an officer is absent,
or whenever, for any reason, the Board of Directors may deem it desirable, the
Board may delegate the powers and duties of an officer to any other officer or
officers or to any director or directors.
ARTICLE VII
Conflicts of Interests
No contract or other transaction between the Corporation and
one or more of its directors, or any other corporation, partnership,
association or other organization in which one or more of its directors or
officers is a director or officer or is financially interested shall be either
void or voidable solely for that reason or solely because such director or
officer is present at or participates in the meeting of the Board of Directors
or a committee thereof that authorizes, approves, or ratifies such contract or
transaction or solely because their votes are counted for such purpose if:
(A) The material facts of such relationship, interest,
contract or transaction are disclosed to or known by the Board of Directors or
committee thereof, that in good faith authorizes, approves, or ratifies the
contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors are less than
a quorum;
(B) The material facts of such relationship, interest,
contract or transaction are disclosed to or known by the shareholders entitled
to vote thereon, and the contract or transaction is specifically authorized,
approved or ratified in good faith by vote of the shareholders; or
17
18
(C) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board
of Directors, a committee thereof, or the shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE VII
Indemnification of Officers; Directors and Others
1. Definitions. Unless the context of this Article VIII
indicates otherwise, initially capitalized terms used herein shall have the
meanings given in Section 7-109-101 of the Colorado Business Corporation Act.
2. Standards for Indemnification.
A. General. Except as provided in Subsection B(4) below,
the Corporation shall indemnify against Liability, to the fullest extent
authorized by the Colorado Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), incurred in any
Proceeding by an individual made a Party to the Proceeding because he is or was
a Director or officer of the Corporation or any subsidiary of the Corporation
(an "Indemnitee") if: (a) he conducted himself in good faith; (b) he
reasonably believed: (i) in the case of conduct in his Official capacity with
the Corporation, that his conduct was in the Corporation's best interests; or
(ii) that in all other cases, that his conduct was at least not opposed to the
Corporation's best interests; and (c) in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
B. Employee Benefit Plans: An Indemnitee's conduct with
respect to an employee benefit plan for a purpose he reasonably believed to be
in the interests of the participants in or beneficiaries of the plan is conduct
that satisfies the requirements of clause (b)(ii) of Subsection B(1) above. An
Indemnitee's conduct with respect to an employee benefit plan for a purpose
that he did not reasonably believe to be in the interests of the participants
in or beneficiaries of the plan shall be deemed not to satisfy the requirements
of clause (i) of Subsection B(1) above.
18
19
C. Termination of a Proceeding. The termination of any
proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, is not of itself determinative that the
individual did not meet the standard of conduct set forth in Subsection
B(l) above.
D. Cases in Which Indemnification is Prohibited. The
Corporation may not indemnify an Indemnitee under this Section B either (a) in
connection with a Proceeding by or in the right of the Corporation in which the
Indemnitee was adjudged liable to the Corporation; or (b) in connection with
any Proceeding charging improper personal benefit to the Indemnitee, whether or
not involving action in his Official capacity, in which he was adjudged liable
on the basis that personal benefit was improperly received by him.
E. Reasonable Expenses Only. Indemnification permitted
under this Section B in connection with a Proceeding by or in the right of the
Corporation is limited to reasonable expenses incurred in connection with the
Proceeding.
F. Application of Indemnification Obligations.
The indemnity and prepayment obligations of the Corporation and the standards
for indemnification set forth in this Article VIII shall apply in all cases,
even if the conduct, act or omission in question occurred prior to the date
that such indemnity and prepayment obligations were adopted by the Corporation
by amendment to these Bylaws.
3. Mandatory Indemnification. Unless limited by these
Bylaws, the Corporation shall be required to indemnify an Indemnitee who was
wholly successful, on the merits or otherwise, in defense of any Proceeding to
which he was a Party, against reasonable expenses incurred by him in connection
with the Proceeding.
4. Court Ordered Indemnification. Unless limited by
these Bylaws, an Indemnitee who is or was a Party to a Proceeding may apply for
indemnification to the court conducting the Proceeding or to another court of
competent jurisdiction. On receipt of an application, the court, after giving
any notice the court considers necessary, may order indemnification in the
following manner:
A. Mandatory Indemnification. If it determines the
Indemnitee is entitled to mandatory indemnification under Section C above, the
court shall order indemnification, in which case the court shall also order the
Corporation to pay the Indemnitee's reasonable expenses incurred to obtain
court-ordered indemnification.
B. Indemnification Where Regardless of Meeting Standard
of Conduct. If it determines that the Indemnitee is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not he met the standard of conduct set forth in Subsection B(1) of this
Article VIII or was adjudged liable in the circumstances described in
Subsection
19
20
B(4) of this Article, the court may order such indemnification as the court
deems proper; except that the indemnification with respect to any Proceeding in
which liability shall have been adjudged in the circumstances described in said
Subsection B(4) is limited to reasonable expenses incurred,
5. Indemnification Procedure.
A. Authorization of Indemnification Required. The
Corporation may not indemnify an Indemnitee under Section B of this Article
VIII unless authorized in the specific case after a determination has been made
that indemnification of the Indemnitee is permissible in the circumstances
because he has met the standard of conduct set forth in Subsection B(1).
B. Determination by the Board of Directors. The
determination required to be made by Subsection E(1) shall be made: (a) by the
Corporation's Board of Directors by a majority vote of a quorum, which quorum
shall consist of directors not parties to the Proceeding; or (b) if a quorum
cannot be obtained, by a majority vote of a committee of the Board designated
by the Board, which committee shall consist of two or more directors not
parties to the proceeding; except that directors who are parties to the
proceeding may participate in the designation of directors for the committee.
C. Determination by Body Other Than the Board of
Directors. If the quorum cannot be obtained or the committee cannot be
established under Subsection E(2), or even if a quorum is obtained or a
committee designated if such quorum or committee so directs, the determination
required to be made by Subsection E(1) shall be made: (a) by independent legal
counsel selected by a vote of the Corporation's Board of Directors or the
committee in the manner specified in clause (a) or (b) of Subsection E(2) or,
if a quorum of the full Board cannot be obtained and a committee cannot be
established, by independent legal counsel selected by a majority vote of the
full Board; or (b) by the shareholders.
D. Standard for Authorizing Indemnification.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible; except that, if the determination that
indemnification is permissible is made by independent legal counsel,
authorization of indemnification and evaluation as to reasonableness of
expenses shall be made by the body that selected said counsel.
6. Pre-Payment or Reimbursement of Expenses.
A. General. The Corporation shall pay for or
reimburse the reasonable expenses incurred by an Indemnitee who is a Party to a
Proceeding because he is or was a Director or officer of the Corporation or any
subsidiary of the Corporation, in advance of the final disposition of the
Proceeding if: (a) the Indemnitee furnishes the Corporation a written
20
21
affirmation of his good-faith belief that he has met the standard of conduct
described in clause (a) of Subsection B(1); (b) the Indemnitee furnishes the
Corporation a written undertaking, executed personally or on his behalf, to
repay the advance if it is determined that he did not meet such standard of
conduct; and (c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under this Section
F.
B. Undertaking. The undertaking required by clause (b)
of Subsection F(1) shall be an unlimited general obligation of the Indemnitee,
but need not be secured and may be accepted without reference to financial
ability to make repayment.
C. Authorization of Pre-Payments. Determinations and
authorizations of payments under this Section F shall be made in the manner
specified in Section E of this Article VIII.
7. Expenses Incurred as a Witness. The Corporation shall
pay or reimburse Expenses incurred by an Indemnitee in connection with his
appearance, or preparation for his appearance, as a witness in a Proceeding or
at a deposition related to a Proceeding, at a time when he has not been made a
named defendant or respondent in the Proceeding. If the Indemnitee is not an
officer or Director of the Company at the time his appearance is required at a
Proceeding or deposition related to a Proceeding, the Company shall pay the
Indemnitee $500.00 for each day (or part thereof) that the Indemnitee is
required to attend such Proceeding or deposition.
8. Employees and Agents. Unless limited by these Bylaws:
A. Indemnification and Advancement of Expenses. The
Corporation may indemnify and advance expenses, pursuant to Sections B, C and F
of this Article VIII to an employee or agent of the Corporation who is not an
Indemnitee, in defense of any Proceeding to which he was a Party by reason of
his employment by or relationship with the Corporation, to the same extent as
an Indemnitee; and
B. Greater Rights of Indemnification Permitted. The
Corporation may indemnify and advance expenses to an employee or agent of the
Corporation who is not an Indemnitee to a greater extent if consistent with
law, these Bylaws, the Articles of Incorporation, resolution of the
shareholders or directors, or in a contract.
9. Insurance. The Corporation may purchase and maintain
insurance on behalf of a person who is or was a Director, officer, employee,
fiduciary or agent of the Corporation, or any subsidiary of the Corporation, or
who, while a Director, officer, employee, fiduciary or agent of the Corporation
or any subsidiary of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary or
21
22
agent of any other foreign or domestic corporation or of any partnership,
joint venture, trust, other enterprise or employee benefit plan against any
liability asserted against or incurred by him in any such capacity or arising
out of his Status as such, whether or not the Corporation would have the power
to indemnify him against such liability under the provisions of this Article
VIII. Any such insurance may be procured from any insurance company designated
by the Board of Directors of the Corporation, whether such insurance company is
formed under the laws of Colorado or any other jurisdiction of the United
States or elsewhere, including any insurance company in which the Corporation
has equity or any other interest, through stock ownership or otherwise.
10. Report to Shareholders. Any indemnification of or
advance of expenses to a Director in accordance with this Article VIII, if
arising out of a proceeding by or on behalf of the Corporation, shall be
reported in writing to the shareholders with or before the notice of the next
shareholders' meeting.
11. Governing Law. This Article VIII shall be governed
by and construed in accordance with Section 7-109-101 of the Colorado Business
Corporation Act, as amended from time to time.
12. Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in this Article
VIII shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, the Corporation's Articles of
Incorporation, Agreement, vote of stockholders or disinterested directors or
otherwise. To the extent that the rights to indemnification granted by these
Bylaws are inconsistent with those granted by the Corporation's Articles of
Incorporation, the provisions of these Articles of Incorporation shall govern.
ARTICLE IX
Share Certificates and the Transfer of Shares
1. Certificates Representing Shares. The shares may but
need not be represented by certificates. Unless the Colorado Business
Corporation Act or another law expressly provides otherwise, the fact that the
shares are not represented by certificates shall have no effect on the rights
and obligations of shareholders of the Corporation. If the shares are
represented by certificates, such certificates shall be in a form approved by
the Board of Directors, consecutively numbered, and signed in the name of the
Corporation by the chairman or vice chairman of the Board of Directors or by
the chief executive officer, the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary, and shall be sealed with the seal of the Corporation or a facsimile
thereof. Any or all of the signatures upon a certificate may be facsimiles if
the certificate is countersigned by a
22
23
transfer agent or registered by a registrar other than the Corporation itself
or an employee of the Corporation. In case any officer who has signed such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of its issue.
2. Shares Without Certificates. Unless the Articles of
Incorporation provide otherwise, the Board of Directors of the Corporation may
authorize the issuance of any of its classes of series, if any, of shares
without certificates. Such authorization shall not affect shares already
represented by certificates until they are surrendered to the Corporation.
Within a reasonable time after the issuance or transfer of shares without
certificates, the Corporation shall send to the shareholder a written
statement of the information required by the Colorado Business Corporation
Act.
3. Issuance of Shares. Except as provided in the
Articles of Incorporation, the Board of Directors may authorize the issuance of
shares for consideration consisting of any tangible, intangible property or
benefit to the Corporation, including cash, promissory notes, services
performed and other securities of the Corporation. The Board of Directors
shall determine that the consideration received or to be received for the
shares to be issued is adequate. Such determination, in the absence of fraud,
is conclusive insofar as the adequacy of such consideration relates to whether
the shares are validly issued, fully paid and nonassessable. The promissory note
of a subscriber or an affiliate of a subscriber for shares shall not constitute
consideration for the shares unless the note is negotiable and is secured by
collateral other than the shares, having a fair market value at least equal to
the principal amount of the note. For the purposes of this Section 3,
"promissory note" means a negotiable instrument on which there is an obligation
to pay independent of collateral and does not include a nonrecourse note.
Unless otherwise expressly provided in the Articles of Incorporation, shares
having a par value may be issued for less than the par value.
4. Lost Certificates. The Board of Directors may direct
a new certificate to be issued in place of a certificate alleged to have been
destroyed or lost if the owner makes an affidavit or affirmation of that fact
and produces such evidence of loss or destruction as the Board may require. The
Board, in its discretion, may as a condition precedent to the issuance of a new
certificate require the owner to give the Corporation a bond in such form and
amount and with such surety as it may determine as indemnity against any claim
that may be made against the Corporation relating to the certificate allegedly
destroyed or lost.
5. Transfer of Shares
(a) Shares of the Corporation shall only be transferred.
on the stock transfer books of the Corporation by the holder of record thereof
upon the surrender to the Corporation of the share certificates duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer and such documentary stamps as may be required by law.
23
24
In that event, the surrendered certificates shall be cancelled, new
certificates issued to the persons entitled to them, and the transaction
recorded on the books of the Corporation.
6. Registered Shareholders. The Corporation shall be
entitled to treat the registered holder of any shares of the Corporation as the
owner thereof for all purposes, and the Corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or
rights deriving from such shares on the part of any person other than the
registered holder, including without limitation any purchaser, assignee or
transferee of such shares or rights deriving from such shares, unless and until
such other person becomes the registered holder of such shares, whether or not
the Corporation shall have either actual or constructive notice of the claimed
interest of such other person.
The Board of Directors may adopt by resolution a procedure
whereby a shareholder may certify in writing to the Corporation that all or a
portion of the shares registered in the name of such shareholder are held for
the account of a specified person or persons. Such resolution shall set forth:
(i) the classification of shareholder who may certify; (ii) the purpose or
purposes for which the certification may be made; (iii) the form of
certification and information to be contained therein; (iv) if the
certification is with respect to a record date or closing of the stock transfer
books within which the certification must be received by the Corporation; and
(v) such other provision with respect to the procedure as are deemed necessary
or desirable. Upon receipt by the Corporation of a certification complying with
the procedure, the persons specified in the certification shall be deemed, for
the purpose or purposes set forth in the certification, to be the holders of
record of the number of shares specified in place of the shareholder making the
certification.
7. Stock Ledger. An appropriate stock journal and
ledger shall be kept by the secretary or such registrars or transfer agents as
the directors by resolution may appoint in which all transactions in the shares
of stock of the Corporation shall be recorded.
8. Notice of Restriction on Transfer. Notice of any
restriction on the transfer of the stock of the Corporation shall be placed on
each certificate of stock issued.
ARTICLE X
Insurance
By action of the Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such scope and amounts as the Board of Directors deems
appropriate, on behalf of any person who is or was a director, officer,
employee, fiduciary or agent of the Corporation, or who, while a director,
officer, employee, fiduciary or agent of the Corporation, is or was serving at
the request of the
24
25
Corporation as a director, officer, partner, trustee, employee, fiduciary or
agent of any other foreign or domestic corporation or of any partnership, joint
venture, trust, profit or nonprofit unincorporated association, limited
liability company or other enterprise or employee benefit plan, against any
liability asserted against, or incurred by, him in that capacity or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of the Colorado
Business Corporation Act. Any such insurance may be procured from any insurance
company designated by the Board of Directors of the Corporation, whether such
insurance company is formed under the laws of the State of Colorado or any
company in which the Corporation has an equity interest or any other interest,
through stock ownership or otherwise.
ARTICLE XI
Seal and Fiscal Year
1. Seal. The Corporation shall have a seal in the form
impressed to the left of this paragraph of the Bylaws.
2. Fiscal Year. The fiscal year of the Corporation shall
be determined by the Board of Directors. Said fiscal year may be changed from
time to time by the Board of Directors in its discretion.
ARTICLE XII
Dividends
Dividends shall be declared and paid out of the net profits
and surplus of the Corporation as often and at such times as the Board of
Directors may determine, taking into account reserve, capital and other needs
of the Corporation. No unclaimed dividend shall bear interest against the
Corporation. Dividends of capital stock may also be declared when, in the
judgment of the Board of Directors, it is considered proper and in the
interests of the Corporation.
ARTICLE XIII
Amendments
Subject to repeal or change by action of the shareholders, the
Board of Directors may amend, supplement or repeal these Bylaws or adopt new
Bylaws, and all such changes shall
25
26
affect and be binding upon the holders of all shares heretofore as well as
hereafter authorized, subscribed for or offered.
ARTICLE XIV
Miscellaneous
1. Gender. Whenever required by the context, the
singular shall include the plural, the plural the singular, and one gender
shall include all genders.
2. Invalid Provision. The invalidity or unenforceability
of any particular provision of these Bylaws shall not affect the other
provisions herein, and these Bylaws shall be construed in all respects as if
such invalid or unenforceable provision was omitted.
3. Governing Law. These Bylaws shall be governed by and
construed in accordance with the laws of the State of Colorado.
I, Gary M. Jacobs, as Secretary of CEX Holdings, Inc., hereby
certify that the foregoing Bylaws were adopted by the Board of Directors of the
Corporation effective as of June 18, 1996.
/s/ GARY M. JACOBS
-----------------------------
Gary M. Jacobs, Secretary
26