Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
VISTA EXPLORATION CORPORATION
Article I
Offices
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Section 1. Offices. The principal office of the corporation shall be
located in Shawnee Mission, Kansas. The corporation 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 Agent. The registered office of the
corporation required by the Colorado Business Corporation Act to be maintained
in Colorado may be, but need not be, identical with the principal office if in
Colorado. The registered agent or the address of the registered office, or both,
may be changed from time to time by the board of directors.
Article II
Shareholders
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Section 1. Annual Meeting. The annual meeting of the shareholders
shall be held at 10:00 a.m. on the third Friday in the month of July in each
year, beginning with the year 2001, for the purpose of electing directors and
for the transaction of such other business as may come before the meeting. If
the day fixed for the annual meeting shall be a legal holiday in Colorado, such
meeting shall be held on the next succeeding business day. If the election of
directors shall not be held on the day designated herein for any annual meeting
of the shareholders, or at any adjournment thereof, the board of directors shall
cause the election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
Section 2. Special Meetings. Special meetings of the shareholders, for
any purpose, unless otherwise prescribed by statute, may be called by the
president or by the board of directors, and shall be called by the president at
the request of the holders of not less than one-tenth of all the 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 outside Colorado, as the place for any annual meeting or
for any 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 outside Colorado, as the place for such meeting. If no
designation is made, or if a special meeting shall be called otherwise than by
the board, the place of meeting shall be the registered office of the
corporation in Colorado.
Section 4. Notice of Meeting. Written or printed notice stating the
place, day and hour of the meeting, and, in case of a special meeting or as
otherwise required by the Colorado Business Corporation Act, the purposes for
which the meeting is called, shall be delivered not less than ten nor more than
sixty days before the date of the meeting, either 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 president, the
secretary or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting, except that (i) if the number of
authorized shares is to be increased, at least thirty days' notice shall be
given, or (ii) any other longer notice period is required by the Colorado
Business Corporation Act. If mailed and in 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 address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid. If notice is
given other than by mail, and provided that such notice is in comprehensible
form, the notice is given and effective on the date 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 of record if three successive letters 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.
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.
Section 5. Fixing of Record Date. For the purpose of determining
shareholders entitled to (i) notice of or vote at any meeting of shareholders or
any adjournment thereof, (ii) receive distributions or share dividends, or (iii)
demand a special meeting, or to make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy 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 date on which 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 has been made as provided in this section, 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.
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.
Section 6. Shareholders' Lists. The officer or agent having charge of
the stock transfer books for shares of the corporation shall make, at the
earlier of ten days before each meeting of shareholders or two business days
after notice of the meeting has been given, a complete list of the shareholders
entitled to be given notice of such meeting, or any adjournment thereof,
arranged by voting groups and within each voting group by class of series of
shares, 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 ten days before the meeting for which the list was
prepared or two business days after notice of the meeting is given and
continuing through the meeting, and any adjournment thereof, at the principal
office of the corporation, whether within or outside Colorado, at any time
during usual business hours. 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 or his agent or attorney during the whole time of the meeting or any
adjournment thereof. 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. Chairman of Meetings. The president shall call meetings of
shareholders to order and act as chairman of such meetings. In the absence of
the president, an appropriate officer, any shareholder entitled to vote at that
meeting or any proxy of any such shareholder may call the meeting to order and a
chairman shall be elected. In the absence of the secretary and any assistant
secretary of the corporation, any person appointed by the chairman shall act as
secretary of such meetings.
Section 8. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of the
outstanding shares are represented at a meeting, a majority of the shares 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. 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. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, unless the meeting is adjourned and a
new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than 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 a greater number of affirmative votes is required by law or the Articles
of Incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or his duly authorized
attorney in fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
Section 10. 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. In the election of directors, each record holder of stock
entitled to vote at such election shall have as many votes for each of the
shares owned by him as there are directors to be elected and for whose election
he has the right to vote. 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. Cumulative voting shall not be allowed.
Section 11. Voting of Shares by Certain Holders. 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.
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. All other shares may be voted only by the record holder thereof,
except as may be otherwise required by the laws of Colorado.
Section 12. Informal Action by Shareholders. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent
(or counterparts thereof) in writing, setting forth the action so taken, shall
be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof. Such consent shall have the same force and effect as a
unanimous vote of the shareholders, and may be stated as such in any articles or
document filed with the Secretary of State of Colorado under the Colorado
Business Corporation Act. Action taken under this Section 12 is effective as of
the date the last writing necessary to effect the action is received by the
corporation, unless all the writings specify a different effective date, in
which case such specified date shall be the effective date for such action. Any
shareholder who has signed a writing describing and consenting to action taken
pursuant to this Section 12 may revoke such consent by a writing signed by the
shareholder describing the action and stating that the shareholder's prior
consent is revoked, if such writing is received by the corporation before the
effectiveness of the action.
Article III
Board of Directors
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Section 1. General Powers. The business and affairs of the corporation
shall be managed by its board of directors, except as otherwise provided in the
Colorado Business Corporation Act or the Articles of Incorporation.
Section 2. Number, Tenure and Qualifications.
(a) The number of directors of the corporation shall be
fixed from time to time by the board of directors, provided that
the number of directors shall not be more than nine nor less than
three. No decrease in the number of directors shall have the
effect of shortening the term of any incumbent director.
Directors shall be elected at the annual meeting of the
shareholders.
(b) The directors shall be divided into three classes, as
nearly equal in number as possible. Beginning in August 2001, the
Board of Directors shall consist of three directors divided into
three groups, classified as Class A, Class B and Class C. The
Class A director shall hold office for three years or until the
third annual election following his election; the Class B
director shall hold office for two years or until the second
annual election following his election; and the Class C director
shall hold office for one year or until the first annual election
following his election; and in each case, until his successor
shall have been elected and qualified. Following the expiration
of their initial terms, directors in each class shall be elected
for terms of three years to succeed those whose terms expire.
(c) Directors need not be residents of Colorado or
shareholders of the corporation.
Section 3. Vacancies. Any director may resign at any time by giving
written notice to the president or to the secretary of 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; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Any vacancy occurring in the board of directors
may be filled by the shareholders or by the affirmative vote of a majority of
the remaining directors though less than a quorum. If elected by the directors,
the director shall hold office until the next annual shareholders' meeting at
which directors are elected. If elected by the shareholders, the director shall
hold office for the unexpired term of his predecessor in office; except that if
the director's predecessor was elected by the directors to fill a vacancy, the
director elected by the shareholders shall hold office for the unexpired term of
the last predecessor elected by the shareholders.
Section 4. Regular Meetings. A regular meeting of the board of
directors shall be held without other notice than this bylaw immediately after
and at the same place as the annual meeting of shareholders. The board of
directors may provide by resolution the time and place, either within or outside
Colorado, for the holding of additional regular meetings without other notice
than such resolution.
Section 5. Special Meetings. Special meetings of the board of
directors may be called by or at the request of 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 outside Colorado, as the
place for holding any special meeting of the board of directors called by them.
Section 6. Notice. Notice of any special meeting shall be given at
least two days previously thereto by written notice either delivered personally
or mailed to each director at his business address, 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 delivered
three days after such notice is deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. If notice be given by telex, electronically transmitted
facsimile or similar form of wire or wireless communication, such notice shall
be deemed to be given and to be effective when sent. Any director may waive
notice of any meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such 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 7. Quorum. A majority of the number of directors fixed by
Section 2 shall constitute a quorum for the transaction of business at any
meeting of the board of directors, but if less than such majority is present at
a meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice.
Section 8. Manner of Acting. 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 9. 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 10. Presumption of Assent. A director of the corporation who
is present at a meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless (i) the director objects at the beginning of the meeting, or promptly
upon his arrival, to the holding of the meeting or the transaction of business
at the meeting and does not thereafter vote for or assent to any action taken at
the meeting, (ii) the director contemporaneously requests that his or her
dissent or abstention as to any specific action taken be entered in the minutes
of the meeting or (iii) the director shall cause written notice of his or her
dissent or abstention as to any specific action to be received by the presiding
officer of the meeting or by the corporation promptly after adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
Section 11. Removal. The shareholders may, at a meeting called for the
express purpose of removing directors, by a majority vote of the shares entitled
to vote at an election of directors, remove the entire board of directors or any
lesser number, with or without cause. However, if less than the entire board of
directors is to be removed, no one of the directors may be removed if the vote
cast against his removal would be sufficient to elect him if then voted at an
election of the entire board of directors. Notwithstanding, the board of
directors, by a majority vote, may remove a director, with or without cause,
provided that such director was appointed by the board of directors and not
elected or approved by the shareholders.
Section 12. Executive Committee. The board of directors, by resolution
adopted by a majority of the number of directors fixed by Section 2, may
designate one or more directors to constitute an executive committee, 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, to the extent
permitted by the Colorado Business Corporation Act. No such delegation of
authority shall operate to relieve the board of directors or any member of the
board from any responsibility imposed by law.
Section 13. Other Committees. The board of directors, by resolution
duly adopted, may designate other committees and appoint members thereof, but no
such designation of a committee shall operate to relieve the board of directors
or any members of the board from any responsibility imposed by law.
Section 14. 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 may be taken without a meeting if a consent (or counterparts
thereof) in writing, setting forth the action so taken, shall be signed by all
of the directors entitled to vote with respect to the subject matter thereof.
Such consent shall have the same force and effect as a unanimous vote of the
directors, and may be stated as such in any articles or documents filed with the
Secretary of State under the Colorado Business Corporation Act. Unless the
consent specifies a different effective date, action taken under this Section 14
is effective at the time 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 president or secretary of the
corporation.
Section 15. Telephonic Meetings. Members of the board of directors or
any committee designated by the board may participate in a meeting of the board
of directors or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear one another at the same time. Such participation shall constitute presence
in person at the meeting.
Article IV
Officers and Agents
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Section 1. General. The officers of the corporation shall be a
president, one or more vice presidents, a secretary and a treasurer. The board
of directors may appoint such other officers, assistant officers, committees and
agents, including a chairman of the board, assistant secretaries and assistant
treasurers, as they may consider necessary, who shall be chosen in such manner
and hold their offices for such terms and have such authority and duties as from
time to time may be determined by the board of directors. The salaries of all
the officers of the corporation shall be fixed by the board of directors. One
person may hold two or more offices, except that no person may simultaneously
hold the offices of president and secretary. 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 president.
Section 2. Election and Term of Office. The officers of the
corporation shall be elected by the board of directors annually at the first
meeting of the board held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Each officer shall hold office
until the first of the following to occur: until his successor shall have been
duly elected and shall have qualified; or until his death; or until he shall
resign; or until he shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent may be removed by the board
of directors or by the executive committee whenever in its judgment the best
interests of the corporation will 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 or agent shall not in itself create
contract rights.
Any officer may resign at any time by giving written notice thereof to the
corporation. Such resignation is effective when the notice is received by the
corporation unless the notice specifies a later effective date. Unless otherwise
stated in the notice, no acceptance of the resignation shall be necessary to
render such resignation effective.
Section 4. Vacancies. A vacancy in any office, however occurring, may
be filled by the board of directors for the unexpired portion of the term.
Section 5. President. The president shall, subject to the direction
and supervision of the board of directors, be the chief executive officer of the
corporation and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. 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 president, in person or by substitute or 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 president shall have
custody of the treasurer's bond, if any.
Section 6. Vice Presidents. 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 there be 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 7. Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders, executive committee and the board of directors;
(b) see that all notices are duly given in accordance with the provisions of
these bylaws or as required by law; (c) be custodian of the corporate records
and of the seal of the corporation and affix the seal to all documents when
authorized by the board of directors; (d) keep at its registered office or
principal place of business within or outside Colorado a record containing the
names and addresses of all shareholders and the number and class of shares held
by each, unless such a record shall be kept at the office of the corporation's
transfer agent or registrar; (e) sign with the president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (f) have general charge
of the stock transfer books of the corporation, unless the corporation has a
transfer agent; and (g) 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 president or by the board of directors. Assistant secretaries, if any, shall
have the same duties and powers, subject to supervision by the secretary.
Section 8. Treasurer. The treasurer 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. He shall receive and give receipts and acquittances for
money paid in on account of the corporation, and shall pay out of the 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 treasurer 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 or the
president. The assistant treasurers, if any, shall have the same powers and
duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account, prepare
and file all local, state and federal tax returns, prescribe and maintain an
adequate system of internal audit and prepare and furnish to the president and
the board of directors statements of account showing the financial position of
the company and the results of its operations.
Article V
Stock
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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 certificates shall be consecutively numbered and signed,
either manually or by facsimile, in the name of the corporation by one or more
persons designated by the board of directors. 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, it may be issued by
the corporation with the same effect as if he were such officer at the date of
its issue. Certificates of stock shall be in such form consistent with law as
shall be prescribed by the board of directors. If shares are not represented by
certificates, within a reasonable time following the issue or transfer of such
shares, the corporation shall send the shareholder a complete written statement
of all information required to be provided to holders of uncertificated shares
by the Colorado Business Corporation Act. Certificated or uncertificated shares
shall not be issued until the shares represented thereby are fully paid.
Section 2. Consideration for Shares. Shares shall be issued for such
consideration, expressed in dollars as shall be fixed from time to time by the
board of directors. Such consideration may consist in whole or in part of money,
other property, tangible or intangible, negotiable, recourse promissory notes
secured by collateral other than the shares being purchased, or labor or
services actually performed for the corporation. Future services shall not
constitute payment or part payment for shares.
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 it may prescribe. The board of directors may in its
discretion require 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 such documentary stamps as may be required by law and evidence of
compliance with 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 book of the corporation which shall be kept at its principal office or by
its registrar duly appointed.
The corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof, and accordingly shall not be bound
to recognize any equitable or other claim to or interest in such share on the
part of any other person whether or not it shall have express or other notice
thereof, except as may be required by the laws of Colorado or as otherwise
provided in these bylaws.
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.
Article VI
Indemnification of Certain Persons
----------------------------------
Section 1. Indemnification Against Third Party Claims. Any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the corporation
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and, in the case of conduct
in his official capacity, in a manner he reasonably believed to be in the best
interests of the corporation or, in all other cases, in a manner that was at
least not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 2. Indemnification Against Derivative Claims. Any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the corporation against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and, in the case of
conduct in his official capacity, in a manner he reasonably believed to be in
the best interests of the corporation or, in all other cases, in a manner that
was at least not opposed to the corporation's best interests, but no
indemnification shall be made in connection with a proceeding in which such
person has been adjudged to be liable to the corporation.
Section 3. Indemnification Against Claims Involving Improper Personal
Benefit. Notwithstanding the provisions of Sections 1 and 2 of this Article VI,
no indemnification shall be made to any director in connection with any
proceeding charging improper personal benefit to the director, whether or not
involving action in his official capacity, in which he was adjudged liable on
the basis that he or she derived an improper personal benefit.
Section 4. Rights to Indemnification. To the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
in defense of any action, suit or proceeding referred to in Section 1, 2 or 3 of
this Article VI or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith without the necessity of any action
being taken by the corporation other than the determination in good faith that
such defense has been successful. In all other cases, any indemnification under
Section 1, 2 or 3 of this Article VI (unless ordered by a Court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in this Article VI. Such determination shall be made by (a) the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or 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, or (c) if the
quorum cannot be obtained or the committee cannot be established under
Subsection (b) of this Section 4 or, even if a quorum is obtained or a committee
designated, if a majority of the directors constituting such quorum or committee
so directs, the determination required to be made by this Section 4 shall be
made by (i) independent legal counsel selected by a vote of the board of
directors or the committee in the manner specified in Subsection (b) or (c) of
this Section 4 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 of the full board or (ii) by the shareholders.
Section 5. Indemnification by Court Order. A director, officer,
employee or agent 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) if it determines the person is entitled to mandatory
indemnification under Section 4 of this Article VI, the court shall order
indemnification, in which case the court shall also order the corporation to pay
the person's reasonable expenses incurred to obtain court-ordered
indemnification; or (b) if it determines that the person 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
Section 1 or 2 of this Article VI or was adjudged liable in the circumstances
described in Section 2 or 3 of this Article VI, the court may order such
indemnification as the court deems proper; except that the indemnification with
respect to any proceeding in which liability shall have been adjudged in the
circumstances described in Section 2 or 3 of this Article VI is limited to
reasonable expenses incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
Section 6. Effect of Termination of Action. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction or upon
a plea of nolo contendere or its equivalent shall not of itself create a
presumption that the person seeking indemnification did not act in good faith
and in a manner which he reasonably believed to be in the best interests of the
corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Entry of a judgment
by consent as part of a settlement shall not be deemed a final adjudication of
liability, nor of any other issue or matter.
Section 7. Advance of Expenses. Expenses (including attorney fees)
incurred in defending a civil or criminal action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding as authorized in Section 4 of this Article VI if: (a) the director,
officer, employee or agent furnishes the corporation a written affirmation of
his good?faith belief that he has met the standard of conduct described in
Sections 1 and 2 of this Article VI, (b) the director, officer, employee or
agent 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
Article VI.
Section 8. Other Indemnification Rights. The indemnification provided
hereby shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, and any procedure provided for by any of
the foregoing, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of heirs, executors and administrators of such a person. However,
the indemnification provisions provided hereby or otherwise concerning the
corporation's indemnification of or advance for expenses to directors (except
for insurance policies) shall be valid only if and to the extent the provision
is consistent with the provisions of Sections 7-109-101 through 7-109-110 of the
Colorado Business Corporation Act.
Section 9. Report to Shareholders. Any indemnification of or advance
of expenses to a director in accordance with this Article VI, 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. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
Article VII
Provision of 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 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 is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, fiduciary or agent of another
domestic or foreign corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against him and
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 Article VI of these bylaws. Any such
insurance may be procured from any insurance company designated by the board of
directors, whether such insurance company is formed under the laws of Colorado
or any other jurisdiction of the United States or elsewhere, including any
insurance company in which the corporation has an equity or any other interest
through stock ownership or otherwise.
Article VIII
Miscellaneous
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Section 1. Waivers of Notice. Whenever notice is required by law, by
the Articles of Incorporation or by these bylaws, a waiver thereof in writing
signed by the director, shareholder or other person entitled to said notice,
whether before or after the time stated therein, or his appearance at such
meeting in person or (in the case of a shareholders' meeting) by proxy, shall be
equivalent to such notice.
Section 2. Seal. The corporate seal of the corporation shall be
circular in form and shall contain the name of the corporation and the words
"Seal, Colorado."
Section 3. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
Section 4. 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 shall also have the power to make, amend or repeal
the bylaws of the corporation at any annual meeting or any special meeting
called for that purpose.
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.
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.
* * * * *
I hereby certify that I am the duly elected and acting Secretary of Vista
Exploration Corporation, formerly known as Bail Corporation, and that the
foregoing bylaws, comprised of 14 pages, constitute the bylaws of said
corporation as duly adopted by the Board of Directors on August 13, 2001.
/s/ Charles A. Ross
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Charles A. Ross, Sr., Secretary