Section
4.
Regular
Meetings
. A regular meeting of the board of directors shall be
held without notice immediately after and at the same place as the annual
meeting of shareholders. The board of directors may provide by
resolution the time and place, either within or 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 any one (1) of the
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, 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
. Notice
of the date, time and place of any special meeting shall be given to each
director at least 24 hours prior to the proposed time of 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, email or other similar
form of wire or wireless communication, such notice shall be deemed to be given
and to be effective when sent, and with respect to a telegram, such notice shall
be deemed to be given and to be effective when the telegram is delivered to the
telegraph company. If a director has designated in writing one or
more reasonable addresses or facsimile numbers for delivery of notice to him,
notice sent by mail, email, telegraph, telex, electronically transmitted
facsimile or other form of wire or wireless communication shall not be deemed to
have been given or to be effective unless sent to such addresses or facsimile
numbers, as the case may be.
A
director may waive notice of a meeting before or after the time and date of the
meeting by a writing signed by such director. Such waiver shall be
delivered to the secretary for filing with the corporate records, but such
delivery and filing shall not be conditions to the effectiveness of the
waiver. Further, a director’s attendance at or participation in a
meeting waives any required notice to him of the meeting unless at the beginning
of the meeting, or promptly upon his later arrival, the director objects to
holding the meeting or transacting business at the meeting because of lack of
notice or defective notice and does not thereafter vote for or assent to action
taken at the meeting. Neither the business to he 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 the board of directors pursuant to
Article IIISection 7 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.
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 sutra
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 or committee of the hoard 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, 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 IIISection 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 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 tire 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 may be a president, a secretary and a treasurer, and
may also include one or more vice presidents, each of which officer 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 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 or any other officer appointed by the president to do so, 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.
Section
6.
Vice
Presidents
. The vice presidents shall assist the president and
shall perform such duties as may be assigned to there 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.
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 acquittances for money paid in on account of the corporation, and
shall pay out of the corporation’s funds on hand all bills, payrolls and other
just debts of the corporation of whatever nature upon maturity. He
shall perform all other duties incident to the office of the 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 by the
president. 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:
|
(i)
|
That
the corporation is organized under the laws of
Colorado;
|
|
(ii)
|
The
name of the person to whom issued;
|
|
(iii)
|
The
number and class of the shares and the designation of the series, if any,
that the certificate represents;
|
|
(iv)
|
The
par value, if any, of each share represented by the
certificate;
|
|
(v)
|
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.
Except as
otherwise expressly provided in Article IISection 7 and Section 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 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 Section 1 or Section 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 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 1 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 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 or 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 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 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 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: (1) at the
registered office of the corporation in Colorado; (2) 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; (3) by the secretary of the corporation wherever the secretary may
be found; or (4) by any other person authorized from time to time by the board
of directors or the president to receive such writings, wherever such person is
found.
Section
5.
Gender
. The
masculine gender is used in these bylaws as a matter of convenience only and
shall be interpreted to include the feminine and neuter genders as the
circumstances indicate.
Section
6.
Conflicts
. In
the event of any irreconcilable conflict between these bylaws and either the
corporation’s articles of incorporation or applicable law, the latter shall
control.
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.
Amended
and Restated Bylaws
|
Approved
January 12, 2010
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|
STANDARD
GOLD, INC.
|
|
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By:
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/s/ Stephen D. King
|
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Stephen
D. King, Chief Executive
Officer
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