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EXHIBIT 3.2
BYLAWS
OF
FIRSTIER CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the corporation
shall initially be located at 11210 Huron Street, Northglenn, Colorado 80234.
The corporation may change the location of such principal office and may have
such other offices, either within or outside Colorado, as the board of directors
may designate, or as the business of the corporation may require from time to
time.
SECTION 2. REGISTERED OFFICE AND REGISTERED AGENT. The address of the
initial registered office of the corporation is 1625 Broadway, Suite 1600,
Denver, Colorado 80202, and the name of the initial registered agent at this
address is Reid A. Godbolt. The registered office and the registered agent may
be changed by the board of directors at any time.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall
be held on the third Tuesday in May, beginning in the year 2000, at 10:00 a.m.
or at any other time on any other day that shall be fixed by the board of
directors, for the purpose of electing directors and for the transaction of any
other business that may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday in Colorado, the meeting shall be held on the
next succeeding business day. If the election of directors shall not be held on
the day designated in this Section 1 for an annual meeting of the shareholders,
or at any adjournment of the meeting, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as may be convenient.
SECTION 2. SPECIAL MEETING. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the
chairman of the board, the president, the board of directors, or by the holders
of not less than 10% of all outstanding shares of the corporation entitled to
vote at the meeting.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without Colorado, as the place of meeting for any annual
or special meeting called by the board of directors. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate any place,
either within or without Colorado, as the place for the holding of the meeting.
If no designation is made, or if a special meeting is otherwise called, the
place of meeting shall be the principal office of the Company in the State of
Colorado.
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SECTION 4. NOTICE OF MEETINGS. Written notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall, unless otherwise prescribed by
statute, be delivered not less than 10 nor more than 60 days before the date of
the meeting, either personally or by mail, by or at the direction of the
chairman of the board, the president, the secretary, or the officer or other
person authorized to give notice of the meeting, to each shareholder of record
entitled to vote at the meeting; except that if the number of authorized shares
are to be increased, at least 30 days' notice shall be given.
Notice of a special meeting shall include a description of the purpose
or purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to: (i) an amendment to the articles of
incorporation of the corporation; (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be required; (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill; (iv) a
dissolution of the corporation; (v) restatement of the articles of
incorporation; or (vi) any other purpose for which a statement of purpose is
required by the Colorado Business Corporation Act. Notice shall be given
personally or by mail, private carrier, telegraph, teletype, electronically
transmitted facsimile or other form of wire or wireless communication by or at
the direction of the chairman of the board, the president, the secretary, or the
officer or persons 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, properly addressed to the shareholder at his address as it appears in the
corporation's current record of shareholders, with first class postage prepaid.
If notice is given other than by mail, and provided that such notice is in a
comprehensible form, the notice is given and effective on the date actually
received by the shareholder.
If requested by the person or persons lawfully calling such meeting,
the secretary shall give notice thereof at corporate expense. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is
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announced before adjournment at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any business which may
have been transacted at the original meeting. If the adjournment is for more
than 120 days, or if a new record date is fixed for the adjournment 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.
A shareholder may waive notice of a meeting before or after the time
and date of the meeting by a writing signed by such shareholder. Such waiver
shall be delivered to the corporation for filing with the corporate records, but
this delivery and filing shall not be conditions to the effectiveness of the
waiver. Further, by attending a meeting either in person or by proxy, a
shareholder waives objection to lack of notice or defective notice of the
meeting unless the shareholder objects at the beginning of the meeting to the
holding of the meeting or the transaction of business at the meeting because of
lack of notice or defective notice. By attending the meeting, the shareholder
also waives any objection to consideration at the meeting of a particular matter
not within the purpose or purposes described in the meeting notice unless the
shareholder objects to considering the matter when it is presented.
SECTION 5. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment of a meeting, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case to be not more than 70 days and, in case of a meeting of shareholders,
not less than 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 by the directors, the record date shall be the day before the notice of
the meeting is given to shareholders, or the date on which the resolution of the
board of directors providing for a distribution is adopted, as the case may be.
When a determination of shareholders entitled to vote at any meeting of
shareholders is made as provided in this Section 5, such determination shall
apply to any adjournment thereof unless the board of directors fixes a new
record date, which it must do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting. Unless otherwise
specified when the record date is fixed, the time of day for such determination
shall be as of the corporation's close of business on the record date.
Notwithstanding the above, 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 record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of any of the demands pursuant to which the meeting is called.
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SECTION 6. SHAREHOLDERS' LIST. The officer or agent having charge of
the stock transfer books for shares of the corporation shall make, before each
meeting of shareholders, a complete record of the shareholders entitled to vote
at the meeting or any adjournment of the meeting, arranged by voting groups and
within each voting group by class or series, in alphabetical order within each
class or series, with the address of, and the number of shares of each class or
series held by each shareholder. The shareholders' list shall be available for
inspection by any shareholder, beginning the earlier of 10 days before the
meeting for which the list was prepared or two business days after the notice of
the meeting is given and continuing through the meeting, and any adjournment of
the meeting, at the principal office of the corporation or at a place identified
in the notice of the meeting in the city where the meeting will be held. The
shareholders' list shall be subject to inspection on the written demand of any
shareholder and, subject to restrictions of Colorado law, to copy the list
during regular business hours and during the period it is available for
inspection. The original stock transfer books shall be prima facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders.
SECTION 7. QUORUM AND MANNER OF ACTING. Except as provided by law, by
the Articles of Incorporation or these Bylaws, one-third of the votes entitled
to be cast on a matter by a voting group represented in person or by proxy,
shall constitute a quorum of that voting group for action on the matter. In the
absence of a quorum at a meeting, a majority of the votes so represented may
adjourn the meeting from time to time without further notice, for a period not
to exceed 120 days for any one adjournment. If a quorum is present at such
adjourned meeting, any business may be transacted which might have been
transacted at the meeting as originally noticed. The shareholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal during such meeting of enough shareholders to
leave less than a quorum.
If a quorum exists, action on a matter other than the election of
directors by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action, unless the vote of a greater number or voting by classes is required
by law or the articles of incorporation.
SECTION 8. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy by signing an appointment form or similar writing, either
personally or by his duly authorized attorney-in-fact. A shareholder may also
appoint a proxy by transmitting or authorizing the transmission of a facsimile,
telegram, teletype, or other electronic transmission providing a written
agreement of the appointment of the proxy, a proxy solicitor, proxy support
service organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from
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which it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form or similar writing
shall be filed with the secretary of the corporation before or at the time of
the meeting. The appointment of a proxy is effective when received by the
corporation and is valid for 11 months unless a different period is expressly
provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile,
of an appointment of a proxy may be substituted for or used in lieu of the
original appointment for any purpose for which the original appointment could be
used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless: (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his 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
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 exercises 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 (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his 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.
Subject to Section 10 of this Article II and any express limitation on
the proxy's authority appearing on the appointment form, the corporation is
entitled to accept the proxy's vote or other action as that of the shareholder
making the appointment.
SECTION 9. VOTING OF SHARES. Each outstanding share, regardless of
class, shall be entitled to one vote, except in the election of directors, and
each fractional share shall be entitled to a corresponding fractional vote on
each matter submitted to a vote at a meeting of shareholders, except to the
extent that the voting rights of the shares of any class or classes are limited
or denied by the Articles of Incorporation as permitted by the Colorado Business
Corporation Act. Cumulative voting shall not be permitted in the election of
directors or for any other purpose.
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At each election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
SECTION 10. VOTING OF SHARES BY CERTAIN SHAREHOLDERS. 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 give it effect as the act of the
shareholder. If the name signed on a vote, consent, waiver, proxy appointment or
proxy appointment revocation does not correspond to the name of a shareholder,
the corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and to
give it effect as the act of the shareholder if: (i) the shareholder is an
entity and the name signed purports to be that of an officer or agent of the
entity; (ii) the name signed purports to be that of an administrator, executor,
guardian or conservator representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, proxy appointment or proxy
appointment revocation; (iii) the name signed purports to be that of a receiver
or trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation has been presented with
respect to the vote, consent, waiver, proxy appointment or proxy appointment
revocation; (iv) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the corporation requests,
evidence acceptable to the corporation of the signatory's authority to sign for
the shareholder has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation; (v) two or more persons are
the shareholder as co-tenants or fiduciaries and the name signed purports to be
the name of at least one of the co-tenants or fiduciaries, and the person
signing appears to be acting on behalf of all the co-tenants or fiduciaries; or
(vi) the acceptance of the vote, consent, waiver, proxy appointment or proxy
appointment
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revocation is otherwise proper under rules established by the corporation that
are not inconsistent with 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.
Neither the corporation nor its officers nor any 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
is liable in damages for the consequences of the acceptance or rejection.
SECTION 11. 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.
SECTION 12. RECOGNITION PROCEDURE FOR BENEFICIAL OWNERS. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation 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 may set forth: (i) the types of
nominees to which it applies; (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting; (iii) the form of certification and the information to be
contained therein; (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation; (v)
the period for which the nominee's use of the procedure is effective; and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. All 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, its board of directors, except as otherwise
provided in the Colorado Business Corporation Act.
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SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors
of the corporation shall be fixed from time to time by a resolution of the board
of directors or by a resolution adopted by at least a majority of the
shareholders entitled to vote, but in no instance shall there be less than one
director. No decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. A director shall be a natural
person who is eighteen years of age or older. A director need not be a resident
of Colorado or a shareholder of the corporation.
The board of directors shall be divided into three classes, each class
to be as nearly equal in number as possible. The terms of office of directors of
the first class are to expire at the first annual meeting of shareholders after
their election, those of the second class is to expire at the second annual
meeting after their election, and those of the third class is to expire at the
third annual meeting after their election. Thereafter, each director shall serve
for a term ending on the date of the third annual meeting of shareholders
following the annual meeting at which such director was elected.
Each director shall hold office until his successor shall have been
elected and qualified. Any director may be removed by the holders of not less
than two-thirds of the voting group that elected the director, with or without
cause, at a meeting called for that purpose. The notice of the meeting shall
state that the purpose or one of the purposes of the meeting is removal of the
director.
There shall be a chairman of the board, who has been elected from among
the directors. He shall preside at all meetings of the shareholders and of the
board of directors. He shall have such other powers and duties as may be
prescribed by the board of directors.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without notice immediately after, and at the same place
as, the annual meeting of shareholders. The board of directors may provide, by
resolution, the time and place, either within or without Colorado, for the
holding of additional regular meetings without other notice.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the chairman of the board, the president
or any two directors. The person or persons authorized to call special meetings
of the board of directors may fix any place, either within or without Colorado,
as the place for holding any special meeting of the board of directors called by
them.
SECTION 5. NOTICE OF MEETING. Notice of the date, time and place of any
special meeting shall be given to each director at least two days prior to the
meeting by written notice either personally delivered or mailed to each director
at his business address, or
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by notice transmitted by private courier, 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) five days after such notice is deposited in the United States
mail, properly addressed, with first class postage prepaid; or (ii) the date
shown on the return receipt, if mailed by registered or certified mail return
receipt requested, provided that the receipt is signed by or on behalf of the
director to whom the notice is addressed. If notice is given by 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.
A director may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such director. Such waiver shall be
delivered to the secretary for filing with the corporate records, but such
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, a director's attendance at or participation in a meeting waives any
required notice to him of the meeting unless at the beginning of the meeting, or
promptly upon his 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by the
board of directors pursuant to Section 2 of this Article III or, if no number is
fixed, a majority of the number in office immediately before the meeting begins,
shall constitute a quorum for the transaction of business at any meeting of the
board of directors, but if less than the majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of directors.
SECTION 7. INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at a meeting of the directors or any committee designated
by the board of directors may be taken without a meeting if a written consent
(or counterparts thereof) that sets forth the action so taken is signed by all
of the directors entitled to vote with respect to the action taken. Such consent
shall have the same force and effect as a unanimous vote of the directors or
committee members and may be stated as such in
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any document. Unless the consent specifies a different effective time or date,
action taken under this Section 7 is effective at the time of date the last
director signs a writing describing the action taken, unless, before such time,
any director has revoked his consent by a writing signed by the director and
received by the chairman of the board, the president or the secretary of the
corporation.
SECTION 8. TELEPHONIC MEETINGS OF DIRECTORS. The board of directors may
permit any director (or any member of a committee designated by the board) to
participate in a regular or special meeting of the board of directors or a
committee thereof through the use of any means of communication by which all
directors participating in the meeting can hear each other during the meeting. A
director participating in a meeting in this manner is deemed to be present in
person at the meeting.
SECTION 9. VACANCIES. Any director may resign at any time by giving
written notice to the corporation. Such resignation shall take effect at the
time the notice is received by the corporation unless the notice specifies a
later effective date. Unless otherwise specified in the notice of resignation,
the corporation's acceptance of such resignation 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 board of directors or in any other manner
permitted by the Colorado Business Corporation Act. If the directors remaining
in office constitute fewer than a quorum of the board, the directors may fill
the vacancy by the affirmative vote of a majority of all the directors remaining
in office. The director shall hold office until the next annual shareholders'
meeting at which directors are elected.
SECTION 10. COMPENSATION. By resolution of the board of directors, any
director may be paid any one or more of the following: his expenses, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have assented
to all action taken at the meeting unless: (i) the director objects at the
beginning of the meeting, or promptly upon his arrival, to the holding of the
meeting or the transaction of business at the meeting and does not thereafter
vote for or assent to any action taken at the meeting; (ii) the director
contemporaneously requests that his 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 dissent or abstention as to any specific action to
be received by the presiding officer of the meeting before its adjournment or by
the corporation promptly after the adjournment of the meeting. A director may
dissent to a
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specific action at a meeting while assenting to others. The right to dissent to
a specific action taken at a meeting of the board of directors or a committee of
the board shall not be available to a director who voted in favor of such
action.
SECTION 12. EXECUTIVE AND OTHER COMMITTEES. By resolution adopted by a
majority of all the directors in office when the action is taken, the board of
directors may designate from among its members an executive committee and one or
more other committees, and appoint one or more members of the board of directors
to serve on them. To the extent provided in the resolution, each committee shall
have all the authority of the board of directors, except that no such committee
shall have the authority to: (i) authorize distributions; (ii) approve or
propose 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 the Articles of
Incorporation, (v) adopt, amend or repeal the bylaws; (vi) approve a plan of
merger not requiring shareholder approval; (vii) authorize or approve the
reacquisition of shares unless pursuant to a formula or method prescribed by the
board of directors; or (viii) authorize or approve the issuance or sale of
shares, or contract for the sale of shares or determine the designations and
relative rights, preferences and limitations of a class or series of shares,
except that the board of directors may authorize a committee to do so within
limits specifically prescribed by the board of directors. The committee shall
then have full power within the limits set by the board of directors to adopt
any final resolution setting forth all preferences, limitations and relative
rights of such class or series and to authorize an amendment of the Articles of
Incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Colorado
Business Corporation Act.
Sections 3, 4, 5, 6, 7, 8, 10 or 11 of this Article III, which govern
meetings, notice, waiver of notice, quorum, voting requirements and action
without a meeting of the board of directors, shall apply to committees and their
members appointed under this Section 12.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the corporation shall be a chairman
of the board, a chief executive officer, a president, a secretary and a chief
financial officer, each of whom shall be appointed by the board of directors and
shall be a natural person eighteen years of age or older. One person may hold
more than one office. The board of directors may appoint such other officers and
assistant officers, including one or more vice presidents, assistant secretaries
and assistant to the chief financial officer, as it may consider necessary.
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SECTION 2. APPOINTMENT AND TERM OF OFFICE. The officers of the
corporation shall be appointed by the board of directors at each regular meeting
of the board held immediately after each annual meeting of the shareholders. If
the appointment of officers is not made at such meeting, such appointments shall
be made as determined by the board of directors. Each officer shall hold office
until the first of the following occurs: his successor shall have been duly
appointed and qualified, his death, his resignation, or his removal in the
manner provided in Section 3 of this Article IV. In the event that an officer is
employed by the corporation pursuant to an employment contract duly authorized
and approved by the board of directors, an officer may be appointed for the term
of, and in accordance with the provisions of, such employment contract.
SECTION 3. RESIGNATION AND REMOVAL. An officer may resign at any time
by giving written notice of resignation to the corporation. The resignation is
effective when the notice is received by the corporation unless the notice
specifies a later effective date.
Any officer may be removed at any time with or without cause by the
board of directors. Such removal does not effect the contract rights, if any, of
the corporation or of the person so removed. The appointment of an officer shall
not in itself create contract rights.
SECTION 4. VACANCIES. A vacancy in any office, however occurring, may
be filled by the board of directors. If an officer resigns and his 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 provide that the successor
shall not take office until the effective date. In the alternative, the board of
directors may remove the officer at any time before the effective date and may
fill the resulting vacancy.
SECTION 5. CHAIRMAN OF THE BOARD. The chairman of the board shall
preside at all meetings of shareholders and of the board of directors. He may
sign and execute all authorized instruments, contracts, or other obligations on
behalf of the corporation. He shall have such other powers and duties as may be
prescribed by the board of directors.
SECTION 6. CHIEF EXECUTIVE OFFICER. In the absence of the chairman of
the board, the chief executive officer shall preside at all meetings of
shareholders and all meetings of the board of directors. Subject to the
direction and supervision of the board of directors, the chief executive officer
shall have general and active control of its affairs and business and general
supervision of its officers, agents and employees. Unless otherwise directed by
the board of directors, the chief executive officer shall attend in person or by
substitute appointed by him, or shall execute on behalf of the corporation,
written instruments appointing a proxy or proxies to represent the corporation
at, all
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meetings of the stockholders of any other corporation in which the corporation
holds any stock. On behalf of the corporation, the chief executive officer may,
in person or by substitute or by proxy, execute written waivers of notice and
consents with respect to any such meetings. At all such meetings and otherwise,
the president, in person or by substitute or proxy, may vote the stock held by
the corporation, execute written consents and other instruments with respect to
such stock, and exercise any and all rights and powers incident to the ownership
of said stock, subject to the instructions, if any, of the board of directors.
The chief executive officer may sign all instruments, contracts and other
obligations which the board of directors has authorized to be executed, and
shall have such additional authority and duties as are appropriate and customary
for the office of chief executive officer, except as the same may be expanded or
limited by the board of directors from time to time.
SECTION 7. PRESIDENT. Unless otherwise determined by the Board of
Directors, the President shall be the Chief Executive Officer of the
corporation. If an officer other than the President is designated Chief
Executive Officer, the President shall perform such duties as may from time to
time be assigned by the board of directors.
SECTION 8. VICE PRESIDENTS. If appointed by the board of directors, the
vice presidents shall assist the president and shall perform such duties as may
be assigned to them by the president or by the board of directors. In the
absence of the president, the vice president, if any (or, if more than one, the
vice presidents in the order designated by the board of directors, or if the
board makes no such designation, then the vice president designated by the
president, or if neither the board nor the president makes any such designation,
the senior vice president as determined by first election to that office), shall
have the powers and perform the duties of the president.
SECTION 9. SECRETARY. The secretary shall: (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee or
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors of any committee thereof; (ii) see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law; (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal to all documents when authorized by
the board of directors; (iv) keep at the corporation's registered office or
principal office a record containing the names and addresses of all shareholders
in a form that permits preparation of a list of shareholders arranged by voting
group and by class or series of shares within each voting group, that is
alphabetical within each class or series and that shows the address of, and the
number of shares of each class or series held by, each shareholder, unless such
a record shall be kept at the office of the corporation's transfer
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agent or registrar; (v) maintain at the corporation's principal office the
originals or copies of the corporation's Articles of Incorporation, Bylaws,
minutes of all shareholders' meetings and records of all action taken by
shareholders without a meeting for the past three years, all written
communications within the past three years to shareholders as a group or to the
holders of any class or series of shares as a group, a list of the names and
business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements, if any, showing in reasonable detail the corporation's
assets and liabilities and results of operations for the last three years; (vi)
have general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent; (vii) authenticate records of the corporation;
and (viii) in general, perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him by the
chairman of the board, the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to
supervision by the secretary. The directors and/or shareholders may however
respectively designate a person other than the secretary or assistant secretary
to keep the minutes of their respective meetings.
Any books, records, or minutes of the corporation may be in written
form or in any form capable of being converted into written form within a
reasonable time.
SECTION 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall
be the principal financial officer of the corporation, shall have the care and
custody of all funds, securities, evidences of indebtedness and other personal
property of the corporation and shall deposit the same in accordance with the
instructions of the board of directors. Subject to the limits imposed by the
board of directors, he shall receive and give receipts and acquittances for
money paid in on account of the corporation, and shall pay out of the
corporation's funds on hand all bills, payrolls and other just debts of the
corporation of whatever nature upon maturity. He shall perform all other duties
incident to the office of the chief financial officer and, upon request of the
board, shall make such reports to it as may be required at any time. He shall,
if required by the board, give the corporation a bond in such sums and with such
sureties as shall be satisfactory to the board, conditioned upon the faithful
performance of his duties and for the restoration to the corporation of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation. He shall have such
other powers and perform such other duties as may from time to time be
prescribed by the board of directors, the chairman of the board, or the
president. The assistants to the chief financial officer, if any, shall have the
same powers and duties, subject to the supervision of the chief financial
officer.
The chief financial officer shall also be the principal accounting
officer of the corporation, unless otherwise specified by the board of directors
. He shall prescribe and maintain the methods and systems of accounting to be
followed, keep complete books and records of accounts as required by the
Colorado Business Corporation Act,
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prepare and file all local, state and federal tax returns, prescribe and
maintain an adequate system of internal accounting controls and prepare and
furnish to the chairman of the board, the president and the board of directors
statements of accounts showing the financial position of the corporation and the
results of its operations.
SECTION 11. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving a salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
CONTRACTS, LOANS AND CHECKS
SECTION 1. CONTRACTS. The board of directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in the manner that shall from time to time be
determined by resolution of the board of directors.
ARTICLE VI
SHARES
SECTION 1. CERTIFICATES. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the chairman of the board, the president or one or more vice
presidents, and the secretary or an assistant secretary. In case any officer who
has signed or whose facsimile signature has been placed upon such certificate
shall have ceased to be such officer before such certificate is issued, such
certificate may nonetheless be issued by the corporation with the same effect as
if he were such officer at the date of its issue. All certificates shall be
consecutively numbered, and the names of the owners, the number of shares, and
the date of issue shall be entered on the books of the corporation. Each
certificate representing shares
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shall state upon its face: (i) that the corporation is organized under the laws
of Colorado; (ii) the name of the person to whom issued; (iii) the number and
class of the shares and the designation of the series, if any, that the
certificate represents; (iv) the par value, if any, of each share represented by
the certificate; (v) a conspicuous statement, on the front or the back, 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 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; and
(vi) any restrictions imposed by the corporation under the transfer of the
shares represented by the certificate.
SECTION 2. CONSIDERATION FOR SHARES. Certificated or uncertificated
shares shall not be issued until the shares represented thereby are fully paid.
The board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, a
"promissory note" means a negotiable instrument on which there is an obligation
to pay independent of collateral and does not include a non-recourse note.
SECTION 3. LOST CERTIFICATES. In case of the alleged loss, destruction
or mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may, in
its discretion, require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
SECTION 4. TRANSFER OF SHARES. Upon surrender to the corporation or to
a transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and at the place designated by the board
of directors.
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Except as otherwise expressly provided in Sections 10 and 12 of Article
II of these Bylaws, and except for the assertion of dissenters' rights to the
extent provided in the Colorado Business Corporation Act, the corporation shall
be entitled to treat the registered holder of any shares of the corporation as
the owner thereof for all purposes, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or rights
deriving from such shares on the part of any person other than the registered
holder, including without limitation any purchaser, assignee or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
corporation shall have either actual or constructive notice of the claimed
interest of such other person.
SECTION 5. TRANSFER AGENT, REGISTRARS AND PAYING AGENTS. The board may,
at its discretion, appoint one or more transfer agents, registrars and agents
for making payment upon any class of stock, bond, debenture or other security of
the corporation. Such agents and registrars may be located either within or
outside Colorado. They shall have such rights and duties and shall be entitled
to such compensation as may be agreed.
SECTION 6. DISTRIBUTIONS TO SHAREHOLDERS. As used in this Section 6,
"distribution" means a direct or indirect transfer by the corporation of money
or other property, except its own shares, or incurrence of indebtedness by the
corporation, to or for the benefit of any of its shareholders in respect of any
of its shares. A distribution may be in any form, including a declaration or
payment of a dividend; a purchase, redemption, or other acquisition of shares;
or distribution of indebtedness. The board of directors may authorize, and the
corporation may make, distributions to the shareholders subject to the
limitations set forth in this Section 6. The board of directors may fix in
advance a date as the record date for determining shareholders entitled to a
distribution, other than one involving a purchase, redemption, or other
acquisition of the corporation's shares. If a record date is necessary but no
record date is so fixed in advance, the record date is the date the board of
directors authorizes the distribution.
No distribution may be made if, after giving it effect: (i) the
corporation would not be able to pay its debts as they become due in the usual
course of business; or (ii) the corporation's total assets would be less than
the sum of its total liabilities plus (unless the Articles of Incorporation
permit otherwise) the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution. The board of directors may base a determination that
a distribution is not prohibited either on financial statements prepared on the
basis of accounting practices and principles that are reasonable under the
circumstances or on a fair valuation or other method that is reasonable under
the circumstances.
Except as provided elsewhere in this Section 6, the time for measuring
the effect of a distribution under this Section 6 is: (i) in the case of
distribution by purchase,
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redemption, or other acquisition of the corporation's shares, as of the earlier
of: (A) the date money or other property is transferred or debt is incurred by
the corporation; or (B) the date the shareholder ceases to be a shareholder with
respect to the acquired shares; (ii) in the case of any other distribution of
indebtedness, as of the date the indebtedness is distributed; and (iii) in all
other cases, as of either: (A) the date the distribution is authorized, if the
payment occurs within one hundred twenty days after the date of authorization;
or (B) the date the payment is made, if it occurs more than one hundred twenty
days after the date of authorization.
Indebtedness of a corporation, including indebtedness issued as a
distribution, is not considered a liability for purposes of determinations under
this Section 6 if its terms provide that payment of principal and interest
thereon are made only if and to the extent that payment of a distribution to
shareholders could then be made under Section 7-106- 401 of the Colorado
Business Corporation Act. If the indebtedness is issued as a distribution, each
payment of principal or interest thereon is treated as a distribution the effect
of which is measured on the date the payment is actually made.
SECTION 7. SHARE OPTIONS AND OTHER RIGHTS. As used in this Section 7,
"rights" means rights, options, warrants, or convertible securities entitling
the holders thereof to purchase, receive, or acquire shares or fractions of
shares of the corporation or assets or debts or other obligations of the
corporation. The corporation may create and issue rights, except as precluded or
limited by provisions contained in the Articles of Incorporation at the time of
such creation or issuance. The board of directors shall determine the terms upon
which the rights are issued, their form and content, and the consideration, if
any, for which shares or fractions of shares, assets, or debts or other
obligations of the corporation are to be issued pursuant to the rights.
ARTICLE VII
INSURANCE AND BENEFITS
SECTION 1. INSURANCE. By action of the board of directors,
notwithstanding any interest of the directors in the action, the corporation may
purchase and maintain insurance, in such scope and amounts as the board of
directors deems appropriate, on behalf of any person who is or was a director,
officer, employee, fiduciary or agent of the corporation, or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of any other foreign or domestic profit or
nonprofit 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 applicable law. 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
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any other jurisdiction of the United States or elsewhere, including any
insurance company in which the corporation has an equity interest or any other
interest, through stock ownership or otherwise.
SECTION 2. BENEFITS. The board of directors shall have authority to
provide for, or to delegate authority to an appropriate committee to provide
for, any and all manner of benefits or payments, however characterized or
described, to directors, officers and employees and to their estates, families,
dependents or beneficiaries on account of services rendered by the directors,
officers and employees to the corporation.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. SEAL. The board of directors may adopt a corporate seal,
which shall be circular in form and shall contain the name of the corporation,
the state of incorporation, and the words "Corporate Seal".
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be as
established by the board of directors.
SECTION 3. AMENDMENTS. The board of directors shall have power, to the
maximum extent permitted by the Colorado Business Corporation Act, to make,
amend and repeal the Bylaws of the corporation at any regular or special meeting
of the board unless the shareholders, in making, amending or repealing a
particular Bylaw, expressly provide that the directors may not amend or repeal
such bylaw. The shareholders also shall have the power to make, amend or repeal
the Bylaws of the corporation at any annual meeting or at any special meeting
called for that purpose.
SECTION 4. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder
writings consenting to action, and other documents or writings shall be deemed
to have been received by the corporation when they are actually received: (i) at
the registered office of the corporation in Colorado; (ii) 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 designating a
principal office); (iii) by the secretary of the corporation wherever the
secretary may be found; or (iv) by any other person authorized from time to time
by the board of directors or the president to receive such writings, wherever
such person is found.
SECTION 5. GENDER. The masculine gender is used in these Bylaws as a
matter of convenience only and shall be interpreted to include the feminine and
neuter genders as the circumstances indicate.
SECTION 6. CONFLICTS. In the event of any irreconcilable conflict
between these Bylaws and either the corporation's Articles of Incorporation or
applicable law, the latter shall control.
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SECTION 7. DEFINITIONS. Except as otherwise specifically provided in
these Bylaws, all terms used in these Bylaws shall have the same definition as
in the Colorado Business Corporation Act.
The foregoing Bylaws are the true and correct Bylaws of FirsTier
Corporation as of September 13, 1999.
/s/ Timothy D. Wiens
-----------------------------------------
Timothy D. Wiens, Chief Executive Officer
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