EXHIBIT 3.ii
AMENDMENT TO THE
BYLAWS OF
AQUA CLARA BOTTLING & DISTRIBUTION, INC.
Effective March 7, 2000
Whereas the Corporation has from time to time a different individual
holding the office of President from the individual holding the office of Chief
Executive Officer,
Resolved that whenever the titles of President and Chief Executive Officer
shall be held by different individuals the bylaws of the Corporation shall be
amended to provide that the term "Chief Executive Officer" shall replace the
term "President" in Article II Sections 2 & 4, Article III Sections 5 &12, and
Article IV Sections 3, 5, 6, 7 & 8 and as is otherwise required to reflect that
the President and the other officers of the Corporation shall assist the Chief
Executive Officer, shall perform such duties as are assigned to them by the
Chief Executive Officer, and shall report to the Chief Executive Officer, who
shall report to the Board of Directors.
Dated May 19, 2000
/s/ C. J. Mersis
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/s/ John Thomas
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/s/ Michael Potapow
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/s/ Carl Evans
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/s/ John C. Plunkett
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BYLAWS
OF
AQUA CLARA BOTTLING & DISTRIBUTION, INC.
Effective 3/7/00
Table of Contents
Article
I. Offices.
II. Shareholders.
III. Board of Directors.
IV. Officers and Agents.
V. Stock.
VI. Indemnification of Certain Persons.
VII. Provision of Insurance.
VIII. Miscellaneous.
ARTICLE I
Offices
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The principal office of the corporation shall be designated from time to
time by the corporation and may be within or outside of Colorado.
The corporation may have such other offices, either within or outside
Colorado, as the board of directors may designate or as the business of the
corporation may require from time to time.
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, and the address of the registered office 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 on a date and at a
time fixed by the board of directors of the corporation for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. If the election of directors is not held on the day fixed as
provided herein for any annual meeting of the shareholders, or any adjournment
thereof, the board of directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as it may conveniently be held.
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Section 2. Special Meetings.
-----------------
Unless otherwise prescribed by statute, special meetings of the
shareholders may be called for any purpose by the president or by the board of
directors. The president shall call a special meeting of the shareholders if the
corporation receives one or more written demands for the meeting, stating the
purpose or purposes for which it is to be held, signed and dated by holders of
shares representing at least ten percent of all the votes entitled to be cast on
any issue proposed to be considered at the meeting.
Section 3. Place of Meeting.
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The board of directors may designate any place, either within or outside
Colorado, as the place for any annual meeting or 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 is called other than by the board, the place of meeting shall be the
principal office of the corporation.
Section 4. Notice of Meeting.
------------------
Written notice stating the place, date, and hour of the meeting shall be
given not less than ten nor more than sixty days before the date of the meeting,
except that (1) 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. The secretary shall be
required to give such notice only to shareholders entitled to vote at the
meeting except as otherwise required by the Colorado Business Corporation Act.
Notice of a special meeting shall include a description of the purpose or
purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill, (iv) a
dissolution of the corporation, (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 president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting. If
mailed, 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
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it appears in the corporation's current record of shareholders, with first class
postage prepaid If notice is given other than by mail, the notice is given and
effective on the date actually received by the shareholder.
No notice need be sent to any shareholder if three successive notices
mailed to the last known address of such shareholder have been returned as
undeliverable until such time as another address for such shareholder is made
known to the corporation by such shareholder. In order to be entitled to receive
notice of any meeting, a shareholder shall advise the corporation in writing of
any change in such shareholder's mailing address as shown on the corporation's
books and records.
When a meeting is adjourned to another date, time or place, notice need not
be given of the new date, time or place if the new date, time or place of such
meeting is announced before adjournment at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which may have been transacted at the original meeting. If the adjournment is
for more than 120 days, or if a new record date is fixed for the adjourned
meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
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 (i) notice of or
vote at any meeting of shareholders or any adjournment thereof, (ii) receive
distributions or share dividends, (iii) demand a special meeting, or (iv) 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, and, in
case of a meeting of shareholders, not less than ten days, prior to the date on
which the particular action requiring such determination of shareholders is to
be taken. If 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, 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
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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.
Section 6. Voting Lists.
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After a record date is fixed for a shareholders' meeting, the secretary
shall make ten days before such meeting a complete list of the shareholders
entitled to be given notice of such meeting or any adjournment thereof. The list
shall be arranged by voting groups and within each voting group by class or
series of shares, shall be in alphabetical order within each class or series,
and shall show the address of and the number of shares of each class or series
held by each shareholder. For the period beginning ten days prior to the meeting
and continuing through the meeting and any adjournment thereof, this list shall
be kept on file at the principal office of the corporation, or at a place (which
shall be identified in the notice) in the city where the meeting will be held.
Such list shall be available for inspection on written demand by any shareholder
(including for the purpose of this Section 6 any holder of voting trust
certificates) or his agent or attorney during regular business hours and during
the period available for inspection. The original stock transfer books shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or transfer books or to vote at any meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular
business hours and during the period it is available for inspection, provided
(i) the shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose, and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
Section 7. 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
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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.
Section 8. Quorum and Manner of Acting.
----------------------------
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. If less than one-third of such votes are
represented 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
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 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 9. Proxies.
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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 telegram, teletype, or other
electronic transmission providing a written statement of the appointment to the
proxy, a proxy solicit or, proxy support service organization, or other person
duly authorized by the proxy to receive appointments as agent for the proxy, or
to the corporation. The transmitted appointment shall set forth or be
transmitted with written evidence from which it can be determined that the
shareholder transmitted or authorized the transmission of the appointment. The
proxy appointment form or similar writing shall be filed with the secretary of
the corporation before or at the time of the meeting. The appointment of a proxy
is effective when received by the corporation and is valid for eleven months
unless a different period is expressly provided in the appointment form or
similar writing. Any complete copy, including an electronically transmitted
facsimile, of an appointment of a proxy may be substituted for or used in lieu
of the original appointment for any purpose for which the original appointment
could be used.
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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 11 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 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 Code. Cumulative
voting shall not be permitted in the election of directors or for any other
purpose. Each record holder of stock shall be entitled to vote in the election
of directors and 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.
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
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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 11. Corporation's Acceptance of Votes.
----------------------------------
If the name signed on a vote, consent, waiver, proxy appointment, or proxy
appointment revocation corresponds to the name of a shareholder, the
corporation, if acting in good faith, is entitled to accept the vote, consent,
waiver, proxy appointment or proxy appointment revocation and 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 revocation is otherwise proper under rules
established by the corporation that are not inconsistent with
this Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer or
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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 is
liable in damages for the consequences of the acceptance or rejection.
Section 12. Informal Action by Shareholders.
--------------------------------
Any action required or permitted to be taken at a meeting of the
shareholders 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 shareholders entitled to vote with respect to the subject matter thereof and
received by the corporation. Such consent shall have the same force and effect
as a unanimous vote of the shareholders and may be stated as such in any
document. 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 of the writings specify a different effective date, in which case
such specified date shall be the effective date for such action. If any
shareholder revokes his consent as provided for herein prior to what would
otherwise be the effective date, the action proposed in the consent shall be
invalid. The record date for determining shareholders entitled to take action
without a meeting is the date the corporation first receives a writing upon
which the action is taken.
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 thereto is revoked, if such writing is received by
the corporation before the effectiveness of the action.
Section 13. 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.
ARTICLE III
Board of Directors
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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 or the articles of incorporation.
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Section 2. Number, Qualifications and Tenure.
----------------------------------
The number of directors of the corporation shall be fixed from time to time
by the board of directors, within a range of no less than three or more than
eleven, but 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.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
following his election and thereafter until his successor shall have been
elected and qualified. Directors shall be removed in the manner provided by the
Colorado Business Corporation Act. Any director may be removed by the
shareholders, with or without cause, at a meeting called for that purpose. The
notice of the meeting shall state that the purpose or one of the purposes of the
meeting is removal of the director. A director may be removed only if the number
of votes cast in favor of removal exceeds the number of votes cast against
removal.
Section 3. Vacancies.
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Any director may resign at any time by giving written notice to the
secretary. Such resignation shall take effect at the time the notice is received
by the secretary 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 shareholders at a special meeting called for that purpose or by the board of
directors, If the directors remaining in office constitute fewer than a quorum
of the board, the directors may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office. If elected by the directors,
the director 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.
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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 outside Colorado, for the holding of additional regular meetings
without other notice.
Section 5. Special Meetings.
-----------------
Special meetings of the board of directors may be called by or at the
request of the president or a majority of the directors. The person or persons
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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, provided that no meeting shall be
called outside the State of Colorado unless a majority of the board of directors
has so authorized.
Section 6. Notice.
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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 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 return receipt is signed by 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.
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 7. Quorum.
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A majority of the number of directors fixed by the board of directors
pursuant to Article III, Section 2 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.
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.
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The electronically transmitted facsimile signature of a director affixed to
any minutes or resolutions shall be treated as an original signature for all
intents and purposes.
Section 9. Compensation.
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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 therefore.
Section 10. 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 secretary promptly after the
adjournment of the meeting. A director may dissent to a specific action at a
meeting, while assenting to others. The right to dissent to a specific action
taken at a meeting of the board of directors or a committee of the board shall
not be available to a director who voted in favor of such action.
Section 11. 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 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
or officer 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,
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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 4, 5, 6, 7, 8 or 12 of 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 11. Neither the designation of any such committee, the
delegation of authority to such committee, nor any action by such committee
pursuant to its authority shall alone constitute compliance by any member of the
board of directors or a member of the committee in question with his
responsibility to conform to the standard of care set forth in Article III,
Section 14 of these bylaws.
Section 12. 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 any document. Unless the consent specifies a different effective time or
date, action taken under this Section 12 is effective at the time or 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 president or the secretary of the corporation.
Section 13. Telephonic Meetings.
--------------------
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 14. Standard of Care.
-----------------
A director shall perform his duties as a director, including without
limitation his duties as a member of any committee of the board, in good faith,
in a manner he reasonably believes to be in the best interests of the
corporation, and with the care an ordinarily prudent person in a like position
would exercise under similar circumstances. In performing his duties, a director
shall be entitled to rely on information, opinions, reports or statements,
including financial statements and other financial data, in each case prepared
or presented by the persons herein designated. However, he shall not be
considered to be acting in good faith if he has knowledge concerning the matter
in question that would cause such reliance to be unwarranted. A director shall
13
not be liable to the corporation or its shareholders for any action he takes or
omits to take as a director if, in connection with such action or omission, he
performs his duties in compliance with this Section 14.
The designated persons on whom a director is entitled to rely are (i) one
or more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented, (ii) legal
counsel, public accountant, or other person as to matters which the director
reasonably believes to be within such person's professional or expert
competence, or (iii) a committee of the board of directors on which the director
does not serve if the director reasonably believes the committee merits
confidence.
ARTICLE IV
Officers and Agents
-------------------
Section 1. General.
--------
The officers of the corporation shall be a chief executive officer, a chief
operating officer, a president, one or more vice presidents, a secretary and a
treasurer, 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 or an officer or officers so authorized
by the board 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. Except as expressly prescribed by
these bylaws, the board of directors or the officer or officers authorized by
the board shall from time to time determine the procedure for the appointment of
officers, their authority and duties and their compensation, provided that the
board of directors may change the authority, duties and compensation of any
officer who is not appointed by the board.
Section 2. Appointment and Term of Office.
-------------------------------
The officers of the corporation to be appointed by the board of directors
shall be appointed at each annual meeting of the board held after each annual
meeting of the shareholders. If the appointment of officers is not made at such
meeting or if an officer or officers are to be appointed by another officer or
officers of the corporation, such appointments shall be made as determined by
the board of directors or the appointing person or persons. 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.
Section 3. Resignation and Removal.
------------------------
An officer may resign at any time by giving written notice of resignation
to the president, secretary or other person who appoints such officer. The
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resignation is effective when the notice is received by the corporation unless
the notice specifies a later effective date.
Any officer or agent may be removed at any time with or without cause by
the board of directors or an officer or officers authorized by the board. Such
removal does not affect the contract rights, if any, of the corporation or of
the person so removed. The appointment of an officer or agent 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, or by the officer or officers authorized by the board, for the
unexpired portion of the officer's term. If an officer resigns and his
resignation is made effective at a later date, the board of directors, or
officer or officers authorized by the board, 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 or officer or officers authorized by
the board provide that the successor shall not take office until the effective
date. In the alternative, the board of directors, or officer or officers
authorized by the board of directors, may remove the officer at any time before
the effective date and may fill the resulting vacancy.
Section 5. President.
----------
The president shall preside at all meetings of shareholders and all
meetings of the board of directors unless the board of directors has appointed a
chairman, vice chairman, or other officer of the board and has authorized such
person to preside at meetings of the board of directors. Subject to the
direction and supervision of the board of directors, the president shall 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. Unless otherwise directed by the board of directors, the
president 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 meetings of the stockholders of any
other corporation in which the corporation holds any stock. On behalf of the
corporation, the president 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 president shall have custody of the
treasurer's bond, if any. The president shall have such additional authority and
duties as are appropriate and customary for the office of president and chief
executive officer, except as the same may be expanded or limited by the board of
directors from time to time.
15
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 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 (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 of 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
or 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 place of business a record
containing the names and addresses of all shareholders in a form that permits
preparation of a list of shareholders arranged by voting group and by class or
series of shares within each voting group, that is alphabetical within each
class or series and that shows the address of, and the number of shares of each
class or series held by, each shareholder, unless such a record shall be kept at
the office of the corporation's transfer agent or registrar, (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 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
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.
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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. Subject
to the limits imposed by the board of directors, he shall receive and give
receipts and acquitances 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 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 as
required by the Colorado Business Corporation Act, 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
corporation and the results of its operations.
ARTICLE V
Stock
-----
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. 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 shall state upon its face:
17
(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 certificaterepresents;
(iv) The par value, if any, of each share represented by the
certificate;
(v) Any restrictions imposed by the corporation upon the transfer of
the shares represented by the certificate.
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 of the information required to
be provided to holders of uncertificated shares by the Colorado Business
Corporation Act.
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, "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.
18
Except as otherwise expressly provided in Article II, Sections 7 and 11,
and except for the assertion of dissenters' rights to the extent provided in
Article 113 of 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.
ARTICLE VI
Indemnification of Certain Persons
----------------------------------
Section 1. Indemnification.
----------------
For purposes of Article VI, a "Proper Person" means any person (including
the estate or personal representative of a director) 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,
and whether formal or informal, by reason of the fact that he is or was a
director, officer, employee, fiduciary or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, fiduciary or agent of any 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. The corporation shall indemnify any Proper
Person against reasonably incurred expenses (including attorneys' fees),
judgments, penalties, fines (including any excise tax assessed with respect to
an employee benefit plan) and amounts paid in settlement reasonably incurred by
him in connection with such action, suit or proceeding if it is determined by
the groups set forth in Section 4 of this Article that he conducted himself in
good faith and that he reasonably believed (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in the
corporation's best interests, or (ii) in all other cases (except criminal
cases), that his conduct was at least not opposed to the corporation's best
interests, or (iii) in the case of any criminal proceeding, that he had no
reasonable cause to believe his conduct was unlawful. Official capacity means,
when used with respect to a director, the office of director and, when used with
respect to any other Proper Person, the office in a corporation held by the
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officer or the employment, fiduciary or agency relationship undertaken by the
employee, fiduciary, or agent on behalf of the corporation. Official capacity
does not include service for any other domestic or foreign corporation or other
person or employee benefit plan.
A director's conduct with respect to an employee benefit plan for a purpose
the director reasonably believed to be in the interests of the participants in
or beneficiaries of the plan is conduct that satisfies the requirement in (ii)
of this Section 1. A director's conduct with respect to an employee benefit plan
for a purpose that the director did not reasonably believe to be in the
interests of the participants in or beneficiaries of the plan shall be deemed
not to satisfy the requirement of this section that he conduct himself in good
faith.
No indemnification shall be made under this Article VI to a Proper Person
with respect to any claim, issue or matter in connection with a proceeding by or
in the right of a corporation in which the Proper Person was adjudged liable to
the corporation or in connection with any proceeding charging that the Proper
Person derived an improper personal benefit, whether or not involving action in
an official capacity, in which he was adjudged liable on the basis that he
derived an improper personal benefit. Further, indemnification under this
section in connection with a proceeding brought by or in the right of the
corporation shall be limited to reasonable expenses, including attorneys' fees,
incurred in connection with the proceeding.
Section 2. Right to Indemnification.
-------------------------
The corporation shall indemnify any Proper Person who was wholly
successful, on the merits or otherwise, in defense of any action, suit, or
proceeding as to which he was entitled to indemnification under Section 1 of
this Article VI against expenses (including attorneys' fees) reasonably incurred
by him in connection with the proceeding without the necessity of any action by
the corporation other than the determination in good faith that the defense has
been wholly successful.
Section 3. 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 meet the standards of conduct described in Section 1 of this Article VI.
Entry of a judgment by consent as part of a settlement shall not be deemed an
adjudication of liability, as described in Section 2 of this Article VI.
Section 4. Groups Authorized to Make Indemnification Determination.
--------------------------------------------------------
Except where there is a right to indemnification as set forth in Sections 1
or 2 of this Article or where indemnification is ordered by a court in Section
5, any indemnification shall be made by the corporation only as determined in
20
the specific case by a proper group that indemnification of the Proper Person is
permissible under the circumstances because he has met the applicable standards
of conduct set forth in Section I of this Article. This determination shall be
made by the board of directors by a majority vote of those present at a meeting
at which a quorum is present, which quorum shall consist of directors not
parties to the proceeding ("Quorum"). If a Quorum cannot be obtained, the
determination shall be made by a majority vote of a committee of the board of
directors 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. If a Quorum of the board of directors cannot be obtained and the
committee cannot be established, or even if a Quorum is obtained or the
committee is designated and a majority of the directors constituting such Quorum
or committee so directs, the determination 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 this Section 4 or, if a Quorum of the full board of
directors cannot be obtained and a committee cannot be established, by
independent legal counsel selected by a majority vote of the full board
(including directors who are parties to the action) or (ii) a vote of the
shareholders.
Authorization of indemnification and advance of expenses shall be made in
the same manner as the determination that indemnification or advance of expenses
is permissible except that, if the determination that indemnification or advance
of expenses is permissible is made by independent legal counsel, authorization
of indemnification and advance of expenses shall be made by the body that
selected such counsel.
Section 5. Court-Ordered Indemnification.
------------------------------
Any Proper Person may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction for mandatory
indemnification under Section 2 of this Article, including indemnification for
reasonable expenses incurred to obtain court-ordered indemnification. If a court
determines that the Proper Person is entitled to indemnification under Section 2
of this Article, the court shall order indemnification, including the Proper
Person's reasonable expenses incurred to obtain court ordered indemnification.
If the court determines that such Proper Person is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not he met the standards of conduct set forth in Section 1 of this Article or
was adjudged liable in the proceeding, the court may order such indemnification
as the court deems proper except that if the Proper Person has been adjudged
liable, indemnification shall be limited to reasonable expenses incurred in
connection with the proceeding and reasonable expenses incurred to obtain
court-ordered indemnification.
Section 6. Advance of Expenses.
--------------------
Reasonable expenses (including attorneys' fees) incurred in defending an
action, suit or proceeding as described in Section 1 may be paid by the
corporation to any Proper Person in advance of the final disposition of such
action, suit or proceeding upon receipt of (i) a written affirmation of such
21
Proper Person's good faith belief that he has met the standards of conduct
prescribed by Section 1 of this Article VI, (ii) a written undertaking, executed
personally or on the Proper Person's behalf, to repay such advances if it is
ultimately determined that he did not meet the prescribed standards of conduct
(the undertaking shall be an unlimited general obligation of the Proper Person
but need not be secured and may be accepted without reference to financial
ability to make repayment), and (iii) a determination is made by the proper
group (as described in Section 4 of this Article VI) that the facts as then
known to the group would not preclude indemnification. Determination and
authorization of payments shall be made in the same manner specified in Section
4 of this Article VI.
Section 7. Additional Indemnification to Certain Persons Other Than Directors.
-------------------------------------------------------------------
In addition to the indemnification provided to officers, employees,
fiduciaries or agents because of their status as Proper Persons under this
Article, the corporation may also indemnify and advance expenses to them if they
are not directors of the corporation to a greater extent than is provided in
these bylaws, if not inconsistent with public policy, and if provided for by
general or specific action of its board of directors or shareholders or by
contract.
Section 8. Witness Expenses.
-----------------
The sections of this Article VI do not limit the corporation's authority to
pay or reimburse expenses incurred by a director in connection with an
appearance as a witness in a proceeding at a time when he has not been made a
named as a defendant or respondent in the proceeding.
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
----------------------
Section 1. 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 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
22
foreign or domestic profit or nonprofit corporation or of any partnership, joint
venture, trust, profit or nonprofit unincorporated association, limited
liability company, other enterprise or employee benefit plan, against any
liability asserted against, or incurred by, him in that capacity or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of Article VI or
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 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.
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 and the words, "Seal,
Colorado."
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 is 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 at the principal office of the corporation (as that office is
designated in the most recent document filed by the corporation with the
secretary of state for Colorado designating a principal office) addressed to the
attention of the secretary of the corporation.
23
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.
24