AMENDED
AND RESTATED BYLAWS
OF
SOLITARIO
ZINC CORP.
(As of
April 23, 2021)
ARTICLE 1
OFFICES
The
principal office of the Corporation shall be located in the City of
Wheat Ridge, County of Jefferson, Colorado. The Corporation may
also have offices at such other places inside or outside the State
of Colorado as the Board of Directors may from time to time
determine or the business of the Corporation may
require.
ARTICLE 2
SHAREHOLDERS
2.1
Place of Meetings.
Meetings of the shareholders shall be held at the principal office
of the Corporation or at such other place inside or outside the
State of Colorado as the Board of Directors shall authorize and
direct.
2.2
Annual Meeting. The
annual meeting of the shareholders shall be held during the month
of June of each year, when the shareholders shall elect directors
and transact such other business as may properly come before the
meeting. The Board of Directors may designate a different date
before or after such date.
2.3
Special Meetings.
Special meetings of the shareholders may be called only as
permitted in the Corporation’s Restated Articles of
Incorporation. Such request and the notice of meeting issued
pursuant thereto shall state the purpose or purposes of the
proposed meeting. Business transacted at a special meeting shall be
confined to the purpose stated in the notice.
2.4
Fixing Record Date.
For the purpose of determining the shareholders qualified or
entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from
any proposal without a meeting, or for the purpose of determining
shareholders qualified or entitled to receive payment of any
dividend or the allotment of any rights, or for any other proper
purpose, the Board of Directors shall fix, in advance, a date as
the record date for any such determination of shareholders. Such
date shall be not more than fifty (50) nor less than ten (10) days
before the date of such meeting. If no record date is fixed by the
Board, the record date for any such purpose shall be twenty (20)
days before the date of such meeting or action. When such
determination of qualified or entitled shareholders has been made
as provided above, such determination shall also apply to any
adjourned meeting, except where transfer of stock to a new holder
has been entered on the transfer books of the Corporation after the
original meeting was adjourned and at least twenty (20) days before
the date of such adjourned meeting.
2.5
Notice of Meetings of
Shareholders. Written notice shall be delivered either
personally or by mail to each shareholder entitled to vote at any
meeting of the shareholders. Such notice shall be delivered not
less than ten (10) nor more than fifty (50) days before the date of
the meeting, except that if the authorized shares are to be
increased, at least thirty (30) days’ notice shall be given.
The notice of each meeting shall state the place, date and hour of
the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called. The notice shall indicate
that it is being issued by or at the direction of the officer or
persons calling the meeting. If mailed, such notice shall be deemed
delivered when deposited in the United States mail, with postage
prepaid, addressed to the shareholder at his address as it appears
on the record of shareholders, or if he shall have filed with the
Secretary a written request that notices to him be mailed to some
other address, then directed to him at such other address. Unless
the Board of Directors shall fix a new record date for an adjourned
meeting or unless the adjournment is for more than thirty (30)
days, notice of such adjourned meeting need not be given if the
time and place to which the meeting shall be adjourned were
announced at the meeting at which the adjournment is
taken.
2.6
Waivers. Notice of
a meeting need not be given to any shareholder who signs, either in
person or by proxy and whether before or after the meeting, a
waiver of notice. The attendance, whether in person or by proxy, of
any shareholder at a meeting (a) shall constitute a waiver of an
objection by such shareholder to lack of notice or defective notice
of such meeting unless the shareholder, at the beginning of the
meeting, objects to the holding of the meeting or the transacting
of business at the meeting, and (b) shall constitute a waiver of an
objection by such shareholder to consideration at such 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.
2.7
Quorum of
Shareholders.
2.7.1
Except as otherwise
provided by statute or by the Restated Articles of Incorporation,
the presence in person or by proxy of one-third of the voting power
of the outstanding shares of the
Corporation entitled to vote shall constitute a quorum at a meeting
of shareholders. Unless otherwise required herein, by law or
by the Restated Articles of Incorporation, the vote of a majority
of the shares present at the time of a vote, if a quorum is or has
been present, shall be the act of the shareholders with respect to
the matter submitted to a vote of the shareholders.
2.7.2
If less than one-third of the voting power of the outstanding
shares entitled to vote thereat are represented at a meeting, or
for any valid business reason at a meeting where a quorum is
present, either the presiding officer of the meeting or a a
majority in interest of the shareholders present may adjourn the
meeting from time to time to a fixed date without further notice as
to the time and place of such adjourned meeting, but each
adjournment shall be for a period not in excess of sixty (60) days.
At any such adjourned meeting at which a quorum shall be present or
represented, only such business may be transacted which might have
been transacted at any meeting as originally scheduled, unless all
shares are represented and do not object.
2.7.3
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholder and those
remaining may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
2.8
Proxies. Every
shareholder entitled to vote at a meeting of the shareholders or to
express consent or dissent without a meeting may authorize another
person or persons to act for him by proxy. Every proxy must be
signed by the shareholder or his attorney-in-fact and delivered to
the secretary of the meeting prior to or during the roll call, or
be returned to the Corporation with the signed consent to action
without a meeting. No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except as otherwise provided by
law.
2.9
Voting.
2.9.1
At all meetings of shareholders voting may be viva voce; however,
any qualified voter may demand a stock vote, whereupon such vote
shall be taken by ballot and the Secretary shall record the name of
the shareholder voting, the number of shares voted, and, if such
vote shall be by proxy, the name of the proxy holder.
2.9.2
Each shareholder shall have one vote for each share issued and
outstanding which is registered in his name on the books of the
Corporation, except as otherwise provided in the Restated Articles
of Incorporation and except where the transfer books of the
Corporation shall have been closed or a date shall have been fixed
as a record date for the determination of shareholders entitled to
vote prior to his becoming a shareholder. A complete list of
shareholders entitled to vote at such meeting of the shareholders
or any adjournment thereof, arranged in alphabetical order and
setting forth the number of voting shares held by each shareholder,
shall be prepared by the Secretary or the transfer agent of the
Corporation who shall have charge of the stock ledger and stock
transfer books of the Corporation. Such list shall be subject to
inspection by any shareholder at the principal office of the
Corporation during business hours for ten (10) days prior to such
meeting and throughout the meeting or any adjournment
thereof.
2.10
Inspectors. The
Board may, in advance of any meeting of shareholders, appoint one
or more inspectors to act at such meeting or any adjournment
thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may
appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The
inspectors shall determine the number of shares outstanding and the
voting power of each, the number of shares represented at the
meeting, the existence of a quorum, the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with
the right to vote, count and tabulate all votes, ballots or
consents, determine the result and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. On
request of the chairman of the meeting or any shareholder entitled
to vote thereat, the inspector shall make a report in writing of
any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director or
candidate for the office of director shall act as an inspector of
an election of directors. Inspectors need not be
shareholders.
2.11
Director
Nominations. Nominations of candidates for election as
directors at any meeting of shareholders may be made (a) by, or at
the direction of, a majority of the Board of Directors or (b) by
any shareholder entitled to vote at such a meeting. Only persons
nominated in accordance with the procedures set forth in this
Section 2.11 shall be eligible for election as directors at such a
meeting.
Nominations,
other than those made by, or at the direction of, the Board of
Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation as set forth in this Section 2.11.
To be timely a shareholder’s notice shall be delivered to, or
mailed and received at, the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the date of a scheduled shareholders’ meeting,
regardless of postponements, deferrals, or adjournments of that
meeting to a later date; provided, however, that if less than
seventy (70) days’ notice or prior public disclosure of the
scheduled date of such a meeting is given or made, notice by the
shareholder to be timely must be so delivered or received not later
than the close of business on the tenth (10th) day following the
earlier of the day on which such notice of the date of the
scheduled meeting was mailed or the day on which such public
disclosure was made. Such shareholder’s notice shall set
forth (a) as to each person whom the shareholder proposes to
nominate for election or re-election as a director and as to the
shareholder giving the notice (i) the name, age, business address
and residence address of such person, (ii) the principal occupation
or employment of such person, (iii) the class and number of shares
of stock of the Corporation which are beneficially owned by such
person on the date of such shareholder notice and (iv) any other
information relating to such person that is required to be
disclosed in solicitations of proxies with respect to nominees for
election as directors, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, including, but not
limited to, information required to be disclosed by Item 4(b) and
Item 6 of Schedule A of Regulation 14A and information which would
be required to be filed on Schedule B of Regulation 14A with the
Securities and Exchange Commission; and (b) as to the shareholder
giving the notice (i) the name and address, as they appear on the
Corporation’s books, of such shareholder and any other
shareholders known by such shareholder to be supporting such
nominees and (ii) the class and number of shares of stock of the
Corporation which are beneficially owned by such shareholder on the
date of such shareholder notice and by any other shareholders known
by such shareholder to be supporting such nominees on the date of
such shareholder notice. At the request of the Board of Directors,
any person nominated by, or at the direction of, the Board for
election as a director at a meeting of the shareholders shall
furnish to the secretary of the Corporation that information
required to be set forth in a shareholder’s notice of
nomination which pertains to the nominee.
No
person shall be elected as a director of the Corporation unless
nominated in accordance with the procedures set forth in this
Section 2.11. Ballots bearing the names of all the persons who have
been nominated for election as directors at a meeting of the
shareholders in accordance with the procedures set forth in this
Section 2.11 shall be provided for use at the meeting.
The
Board of Directors may reject any nomination by a shareholder not
timely made in accordance with the requirements of this Section
2.11. If the Board of Directors, or a designated committee thereof,
determines that the information provided in a shareholder’s
notice does not satisfy the informational requirements of this
Section 2.11 in any material respect, the Secretary of the
Corporation shall promptly notify such shareholder of the
deficiency in the notice. The shareholder shall have an opportunity
to cure the deficiency by providing additional information to the
Secretary within such period of time, not to exceed five days from
the date such deficiency notice is given to the shareholder, as the
Board of Directors or such committee shall reasonably determine. If
the deficiency is not cured within such period, or if the Board of
Directors or such committee reasonably determines that the
additional information provided by the shareholder, together with
information previously provided, does not satisfy the requirements
of this Section 2.11 in any material respect, then the Board of
Directors may reject such shareholder’s nomination. The
secretary of the Corporation shall notify a shareholder in writing
whether his nomination has been made in accordance with the time
and information requirements of this Section 2.11. Notwithstanding
the procedure set forth in this paragraph, if neither the Board of
Directors nor such committee makes a determination as to the
validity of any nominations by a shareholder, the presiding officer
of the meeting of the shareholders shall determine and declare at
the meeting whether a nomination was made in accordance with the
terms of Section 2.11. If the presiding officer determines that a
nomination was made in accordance with the terms of this Section
2.11, he or she shall so declare at the meeting and ballots shall
be provided for use at the meeting with respect to such nominee. If
the presiding officer determines that a nomination was not made in
accordance with the terms of this Section 2.11, he or she shall so
declare at the meeting and the defective nomination shall be
disregarded.
2.12
New Business. At an
annual meeting of shareholders, only such new business shall be
conducted, and only such proposals shall be acted upon as shall
have been brought before the annual meeting (a) by, or at the
direction of, the Board of Directors or (b) by any shareholder of
the Corporation who complies with the notice procedures set forth
in this Section 2.12. For a proposal to be properly brought before
an annual meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder’s notice must be
delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that, if less than
seventy (70) days’ notice or prior public disclosure of the
date of the scheduled annual meeting is given or made, notice by
the shareholder to be timely must be so delivered or received not
later than the close of business on the tenth (10th) day following
the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public
disclosure was made. A shareholder’s notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring
before the annual meeting (a) a brief description of the proposal
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation’s books, of the
shareholder proposing such business and any other shareholders
known by such shareholder to be supporting such proposal, (c) the
class and number of shares of stock of the Corporation which are
beneficially owned by the shareholder on the date of such
shareholder notice and by any other shareholders known by such
shareholder to be supporting such proposal on the date of such
shareholder notice, and (d) any financial interest of the
shareholder in such proposal.
The
Board of Directors may reject any shareholder proposal not timely
made in accordance with the terms of this Section 2.12. If the
Board of Directors, or a designated committee thereof, determines
that the information provided in a shareholder’s notice does
not satisfy the informational requirements of this Section 2.12 in
any material respect, the Secretary of the Corporation shall
promptly notify such shareholder of the deficiency in the notice.
The shareholder shall have an opportunity to cure the deficiency by
providing additional information to the Secretary within such
period of time, not to exceed five (5) days from the date such
deficiency notice is given to the shareholder, as the Board of
Directors or such committee shall reasonably determine. If the
deficiency is not cured within such period, or if the Board of
Directors or such committee determines that the additional
information provided by the shareholder, together with information
previously provided, does not satisfy the requirements of this
Section 2.12 in any material respect, then the Board of Directors
may reject such shareholder’s proposal. The Secretary of the
Corporation shall notify a shareholder in writing whether his
proposal has been made in accordance with the time and
informational requirements of this Section 2.12. Notwithstanding
the procedure set forth in this paragraph, if neither the Board of
Directors nor such committee makes a determination as to the
validity of any shareholder proposal, the presiding officer of the
annual meeting shall determine and declare at the annual meeting
whether the shareholder proposal was made in accordance with the
terms of this Section 2.12. If the presiding officer determines
that a shareholder proposal was made in accordance with the terms
of this Section 2.12, he or she shall so declare at the annual
meeting and ballots shall be provided for use at the meeting with
respect to any such proposal. If the presiding officer determines
that a shareholder proposal was not made in accordance with the
terms of this Section 2.12, he or she shall so declare at the
annual meeting and any such proposal shall not be acted upon at the
annual meeting.
This
provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors
and committees of the Board of Directors, but, in connection with
such reports, no new business shall be acted upon at such annual
meeting unless stated, filed and received as herein
provided.
2.13
No Shareholders’
Action Without A Meeting. No action may be taken by the
shareholders of the Corporation except at a duly called meeting of
the shareholders.
ARTICLE 3
DIRECTORS
3.1
Number and
Qualification. The business of the Corporation shall be
managed by a Board of Directors, the number of directors of which
shall consist of not less than three (3) (except there need only be
as many directors as there are, or initially will be, shareholders
in the event that the outstanding shares are, or initially will be,
held of record by fewer than three (3) shareholders), nor more than
nine (9) members, each of whom shall be at least eighteen (18)
years of age but who need not be shareholders or residents of the
State of Colorado. The precise number of members of the Board of
Directors shall be fixed from time to time by resolution of the
Board of Directors.
3.2
Election and Term of
Directors. At each annual meeting of shareholders, the
shareholders shall elect directors in accordance with the Restated
Articles of Incorporation. Each director shall hold office for the
term provided in the Restated Articles of Incorporation and until
his successor has been elected and qualified, or until his death,
resignation or removal.
3.3
Newly Created
Directorships and Vacancies. Newly created directorships
resulting from an increase in the number of directors or vacancies
occurring in the Board for any reason may be filled by a vote of a
majority of the directors then in office, although less than a
quorum exists, unless otherwise provided in the Restated Articles
of Incorporation. A director chosen to fill a position resulting
from an increase in the number of directors or to fill a vacancy
caused by resignation, death or removal shall be elected to hold
such office for the term set forth in the Restated Articles of
Incorporation.
3.4
Resignation and
Removal. A director may resign at any time by giving written
notice to the Board, the President, or the Secretary of the
Corporation. Unless otherwise specified in the notice, the
resignation shall take effect upon receipt thereof by the Board or
such officer, and the acceptance of the resignation shall not be
necessary to make it effective. A director may be removed only in
the manner provided by law or the Restated Articles of
Incorporation.
3.5
Quorum of
Directors. A majority of the entire Board of Directors shall
constitute a quorum for the transaction of business or of any
specified item of business.
3.6
Action of the Board of
Directors. Unless otherwise required by law or the Restated
Articles of Incorporation, the vote of a majority of the directors
at the time of the vote, if a quorum is present at the commencement
of the meeting at which the vote is taken, shall be the act of the
Board of Directors. Each director present shall have one vote
regardless of the number of shares, if any, which he may hold. The
directors present at a duly convened meeting may continue to do
business until adjournment. Abstention from voting on any matter
presented at a meeting at which there is a quorum shall be counted
as a vote against the matter.
3.7
Place and Time of Board
Meetings. The Board of Directors may hold its meetings at
the office of the Corporation or at such other places, either
within or without the State of Colorado, as it may from time to
time determine. Members of the Board of Directors or any committee
designated by the Board of Directors pursuant to Section 3.13
hereof may participate in a meeting of the Board or committee by
means of conference telephone or similar communications equipment
by which all persons participating in the meeting can hear each
other at the same time. Such participation shall constitute
presence in person at the meeting.
3.8
Regular Annual
Meeting. A regular annual meeting of the Board of Directors
shall be held immediately following the annual meeting of
shareholders at the place of such annual meeting of shareholders,
unless some other place shall be specified by resolution of the
Board of Directors.
3.9
Regular Meetings.
Regular meetings of the Board of Directors, of which there shall be
at least one per year in addition to the annual meeting, shall be
held at such place, day and hour as shall from time to time be
fixed by resolution of the Board.
3.10
Special Meetings.
Special meetings of the Board of Directors may be held at any place
at any time whenever called by the Chairman of the Board or the
President.
3.11
Notice of Meetings of the
Board; Adjournment.
3.11.1
Regular meetings of the Board may be held without notice at such
time and place as the Board shall from time to time determine.
Special meetings of the Board shall be held upon notice to the
directors and may be called by the Chairman of the Board or the
President to each director either personally or by mail, telegraph,
telephone, cable, wireless, or any other means of communication,
received at least forty-eight (48) hours prior to the time of the
meeting. Notice is deemed to be given when deposited in the United
States mail, postage prepaid, if it is so deposited not less than
five (5) days prior to the date of the meeting. Notice of a meeting
need not be given to any director who submits a waiver of notice,
whether before or after the meeting, or who attends the meeting
without objecting at the beginning of the meeting to the holding of
the meeting or the transacting of business at the
meeting.
3.11.2
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. The
Secretary of the Corporation shall use his best efforts to provide
notice of the adjournment shall be given to all directors who were
absent at the time of the adjournment and, unless such time and
place are announced at the meeting, to the other directors but such
notice shall be valid even if delivered or received less than
forty-eight (48) hours prior to the commencement of the adjourned
meeting.
3.12
Chairman. At all
meetings of the Board of Directors the Chairman of the Board, if
one has been elected, shall preside. In the absence of the
Chairman, the Chief Executive Officer, the President, or in his
absence the next highest officer, shall preside. In any event, a
chairman chosen by the Board may preside.
3.13
Executive and Other
Committees. The Board of Directors, by resolution adopted by
a majority of the entire Board, may designate from among its
members an executive committee and other committees, each
consisting of three (3) or more directors. Each such committee
shall serve at the pleasure of the Board. Each such committee may
exercise the authority of the Board of Directors to the extent
provided in such resolution and any subsequent resolutions
pertaining thereto and adopted in like manner, provided that the
authority of each such committee shall be subject to the
limitations set forth in Colorado Corporation Code Section 7-5-107,
as now or hereafter amended. Such committees shall keep regular
minutes of their proceedings and report to the Board of Directors
when requested to do so.
3.14
Compensation.
Directors as such shall receive no compensation for their services
except such fees for attending meetings or a stated salary or such
other consideration as may be authorized by a majority of the
entire Board of Directors from time to time; provided, that this
does not preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor, nor does it
preclude the Board of Directors from authorizing the reimbursement
of expenses incurred by directors in attending meetings of the
Board of Directors or of any committee created by the Board of
Directors.
3.15
Presumption of
Assent. A director of the Corporation who is present at a
meeting of the Board of Directors or a committee of the Board at
which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless (a) he objects at the
beginning of such meeting to the holding of the meeting or the
transacting of business at the meeting, (b) he contemporaneously
requests that his dissent from the action taken be entered in the
minutes of such meeting, or (c) he files his written dissent to
such action with the person presiding at the meeting before the
adjournment thereof or shall forward such dissent by registered
mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. The right of a director to dissent as
to a specific action taken in a meeting of the Board or a committee
of the Board pursuant to this Section 3.15 is not available to a
director who votes in favor of such action.
3.16
Written Consent of
Directors. Any action that may be taken by vote at a meeting
of the Board or a committee of the Board may be taken without a
meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each director or committee
member, and delivered to the Secretary for inclusion in the minutes
or for filing with the corporate records. Action taken under this
Section 3.16 is effective when all directors or committee members
have signed the consent unless the consent specifies a different
effective date. Such consent has the same force and effect as an
unanimous vote of the directors or committee members and may be
stated as such in any document.
ARTICLE
4
OFFICERS
4.1
Offices, Election and Term
of Office.
The
Board of Directors shall elect or appoint a Chief Executive
Officer, a President, a Secretary and Treasurer, and such other
officers, including one or more Vice Presidents and a Chairman of
the Board, as the Board may determine, who shall have such duties,
powers and functions as hereinafter provided.
All
officers that are elected or appointed shall hold office at the
pleasure of the Board.
None of
the officers of the Corporation need be a director.
4.2
Removal, Resignation,
Salary, Etc.
4.2.1
Any officer elected or appointed by the Board may be removed by the
Board with or without cause.
4.2.2
In the event that a vacancy exists in any office due to the death,
resignation or removal of an officer or for any other reason, the
Board in its discretion may elect or appoint a successor at any
regular or special meeting.
4.2.3
Any two or more offices may be held by the same person, except the
offices of President and Secretary.
4.2.4
The salaries and other compensation of all officers shall be fixed
by the Board from time to time.
4.3
Chairman of the
Board. The Chairman of the Board, if any, shall, if present,
preside at each meeting of the Board of Directors and shall be an
ex officio member of all committees of the Board. He shall perform
all such duties as may from time to time be assigned to him by the
Board of Directors.
4.4
Chief Executive
Officer. Chief Executive Officer shall be the principal
executive officer of the Corporation and, subject to the control of
the Board of Directors, shall offer supervision, advice and counsel
to the President. In the absence of the Chairman of the Board, if
any, the Chief Executive Officer shall preside at each meeting of
the Board of Directors.
4.5
President. The
President shall be an executive officer of the Corporation and,
subject to the control of the Board of Directors and the Chief
Executive Officer, shall in general supervise and control all of
the business and affairs of the Corporation. He shall, when
present, preside at all meetings of the shareholders, and, in the
absence of the Chairman of the Board, of the Board of Directors. He
may sign, with the Secretary or any other proper officer of the
Corporation thereunto authorized by the Board of Directors,
certificates for shares of the Corporation, and, without limiting
his authority to execute any of the following not requiring
specific approval by the Board of Directors, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors
has authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the Board of
Directors or by the Bylaws to some other officer or agent of the
Corporation or shall be required by law to be otherwise signed or
executed. In general the President shall perform all duties
incident to the office and such other duties as may be prescribed
by the Board of Directors from time to time.
4.6
Vice President. The
Corporation shall have one or more Vice Presidents. In the absence
of the President or in the event of his death or inability or
refusal to act, the Vice President (or, if there is more than one,
then the Vice President designated by the Board of Directors) shall
perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
President. The Vice President(s) shall perform such other duties as
from time to time may be assigned to him by the President or by the
Board of Directors.
4.7
Secretary. The
Secretary shall attend all meetings of the Board of Directors and
of the shareholders and record all votes and minutes of all
proceedings in a book or books to be kept for that purpose. He
shall keep in safe custody the seal of the Corporation, if any, and
affix it to any instrument when authorized, and he shall keep all
the documents and records of the Corporation as required by law or
otherwise in a proper and safe manner. When required he shall
prepare or cause to be prepared and available at each meeting of
shareholders entitled to vote thereat, a list of shareholders
indicating the number of shares of each respective class held by
each. In general he shall perform all duties incident to the office
of Secretary and such other duties as may be prescribed from time
to time by the President or the Board of Directors.
4.8
Treasurer. The
Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts
and disbursements in the corporate books. He shall deposit all
money and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board
and disburse the funds of the Corporation as may be ordered or
authorized by the Board and preserve proper vouchers for such
disbursements. He shall render to the President and Board at the
regular meetings of the Board, or whenever they require it, an
account of all his transactions as Treasurer and of the financial
condition of the Corporation, and he shall render a full financial
report at the annual meeting of the shareholders if so requested.
The Treasurer shall be furnished, at his request, with such reports
and statements as he may require from the corporate officers and
agents as to all financial transactions of the Corporation. In
general he shall perform all duties as are given to him by these
Bylaws or as from time to time are assigned to him by the Board of
Directors or President.
4.9
Assistant Officers.
The Board of Directors may elect (or delegate to the Chairman of
the Board or to the President the right to appoint) such other
officers and agents as may be necessary or desirable for the
business of the of the Corporation. Such other officers may include
one or more assistant secretaries and treasurers who shall have the
power and authority to act in place of the officer to whom they are
elected or appointed as an assistant in the event of the
officer’s inability or unavailability to act in his official
capacity.
4.10
Sureties and Bonds.
In case the Board of Directors shall so require, any officer or
agent of the Corporation shall execute to the Corporation a bond in
such sum and with such surety or sureties as the Board may direct.
The Bond shall be conditioned upon the officer’s or
agent’s faithful performance of his duties to the Corporation
and including responsibility for negligence and for the accounting
for all property, funds or securities of the Corporation which may
come into his hands.
ARTICLE 5
SHARES AND CERTIFICATES OF SHARES
5.1
Share Certificates.
The Board may authorize the issuance of any of classes or series of
shares of the Corporation without certificates. Such authorization
shall not affect shares already represented by certificates until
they are surrendered to the Corporation. Within a reasonable time
following the issue or transfer of shares without certificates, the
Corporation shall send the shareholder a complete written statement
of the information required on certificates by the Colorado
Business Corporation Act. Each shareholder is entitled, without
charge, to (a) one share certificate representing the shares of
each class or series of shares registered in the
shareholder’s name or (b) a non-transferable written
acknowledgment of the shareholder’s right to obtain such a
share certificate, provided that in respect of a share held jointly
by several persons, the Corporation is not bound to issue more than
one share certificate and delivery of a share certificate for a
share to one of several joint shareholders or to one of the
shareholders’ duly authorized agents will be sufficient
delivery to all. If shares of the Corporation are represented by
certificates, the certificates shall be issued in numerical order,
and signed by the President or a Vice President, attested by the
Secretary or an Assistant Secretary, and which may be sealed with
the corporate seal, if any. Facsimiles of the signatures and seal
may be used, as permitted by law. Every share certificate shall
state:
5.1.1
The name of the Corporation and that it is organized under the laws
of the State of Colorado;
5.1.2
The name of the person to whom issued;
5.1.3
The number, class and series (if any) of shares which this
certificate represents;
5.1.4
If the Corporation is authorized to issue shares of more than one
class, that upon request and without charge, the Corporation will
furnish any shareholder with a full statement of the designations,
preferences, limitations and relative rights of the shares of each
class.
5.2
Consideration for
Shares. Shares of the Corporation may be issued for such
consideration as shall be authorized by the Board of Directors
establishing a price (in money or other consideration) or a minimum
price or general formula or method by which the price will be
determined. The consideration for the issuance of shares may be
paid in whole or in part in cash, promissory notes, services
performed, contracts for services to be performed, or any other
tangible or intangible property. The reasonable charges and
expenses of organization or reorganization and the reasonable
expenses of and compensation for the sale or underwriting of its
shares may be paid or allowed by the Corporation out of the
consideration received by it in payment for its shares without
rendering the shares not fully paid or assessable.
5.3
Transfers.
Certificated shares may be transferred by delivery of the
certificate, accompanied either by an assignment in writing on the
back of the certificate, or by a written power of attorney to sell,
assign and transfer the same, signed by the record holder of the
certificate. Except as otherwise specifically provided in these
Bylaws, no certificated shares of stock shall be transferred on the
books of the Corporation until the outstanding certificate therefor
has been surrendered to the Corporation. Uncertificated shares
shall be transferable on the books of the Corporation upon the
written instruction from the registered owner of such
uncertificated shares or from a duly authorized attorney with such
proof or guarantee of the authenticity of such instructions as the
Corporation or its agents may reasonably require.
5.4
Loss or Destruction of
Certificates. In the event of the loss or destruction of any
certificate, a new certificate may be issued in lieu thereof upon
satisfactory proof of such loss or destruction, and upon the giving
of security against loss to the Corporation by bond, indemnity or
otherwise, to the extent deemed necessary by the Board of Directors
or the Secretary or Treasurer.
5.5
Transfer of Regulation S
Securities. With respect to any and all equity securities
offered and sold outside the United States pursuant to Rule
903(b)(3) of Regulation S under the Securities Act of 1933 (the
“1933 Act”), as amended, the Corporation shall refuse
to register any transfer of such securities not made in accordance
with the provisions of Regulation S, pursuant to registration under
the 1933 Act, or pursuant to an available exemption from such
registration; provided, however, that if such securities are in
bearer form or foreign law prevents the Corporation from refusing
to register securities transfers, other reasonable procedures (such
as a legend described in paragraph (b)(3)(iii)(B)(3) of Rule 903 of
Regulation S) shall be implemented to prevent any transfer of such
securities not made in accordance with the provisions of Regulation
S. With respect to any and all warrants offered and sold outside
the United States pursuant to Rule 903(b)(3) of Regulation S, and
in accordance with Rule 903(b)(5) of Regulation S, such warrants
may not be exercised within the United States and the securities
issuable upon exercise of such warrants may not be delivered within
the United States upon exercise, other than in offerings deemed to
meet the definition of an “offshore transaction”
pursuant to Rule 902(h) of Regulation S, unless registered under
the 1933 Act or an exemption from such registration is
available.
ARTICLE 6
BOOKS, RECORDS AND REPORTS
6.1
Records of Corporate
Meetings and Share Registers. The Corporation shall keep
complete records of all proceedings of the Board of Directors and
shareholders and shall keep at its registered office or principal
place of business or at the office of its transfer agent or
registrar, a record of its shareholders, giving the names and
addresses of all shareholders, the number and class of shares held
by each and the dates they acquired same.
6.2
Copies of
Resolutions. Any person dealing with the Corporation may
rely upon a copy of any of the records of the proceedings,
resolutions, or votes of the Board of Directors or shareholders,
when certified by the President, Vice President, Secretary or
Assistant Secretary.
6.3
Books of Account.
The Corporation shall keep appropriate and complete books of
account.
6.4
Examination of
Records. Upon presenting a written demand requesting
examination and providing a detailed statement of the purpose of
such examination, any shareholder of record or holder of record of
voting trust certificates, for at least three (3) months or holder
of record of, or the holder of record of voting trust certificates
for, at least five percent (5%) of the outstanding shares of the
Corporation shall have the right to examine for any proper purpose,
in person or by his or her attorney or agent, during usual business
hours, the Corporation’s list of its shareholders, relevant
records of accounts and minutes of meetings and make extracts
therefrom.
ARTICLE
7
CORPORATE SEAL
The
seal of the Corporation, if any, shall be circular in form and bear
the name of the Corporation and the word “seal.” The
seal may be used by causing it to be impressed directly on the
instrument or writing to be sealed, or upon an adhesive substance
affixed thereto. The seal on the certificates for shares or on any
corporate obligation for the payment of money may be a facsimile,
engraved or printed.
ARTICLE
8
EXECUTION OF INSTRUMENTS
All
corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer
or officers or other person or persons as the Board of Directors
may from time to time designate or authorize.
ARTICLE
9
ORDER OF BUSINESS
At
all meetings of shareholders or of the Board of Directors, the
order of business, as far as practicable, shall be as
follows:
1. Roll
call and certifying proxies.
2.
Proof of notice of meeting or waiver of notice.
3.
Reading and approval of unapproved minutes.
4.
Reports of officers and committees.
5.
Election of officers or directors.
6.
Unfinished business.
7. New
business.
8.
Adjournment.
ARTICLE
10
REFERENCES TO ARTICLES OF INCORPORATION
Reference
to the Articles of Incorporation in these Bylaws shall include all
amendments thereto or changes thereof unless specifically
excepted.
ARTICLE
11
INDEMNIFICATION OF DIRECTORS AND OFFICERS
11.1
Grant of
Indemnification. Subject to Section 11.2, each person who
was or is made a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any
threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact
that he or she is or was a director or officer of the Corporation
or who, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer,
employee or agent of this or another corporation or of a
partnership, joint venture, trust, other enterprise, or employee
benefit plan, whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any
other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted by applicable law, as then in effect,
without the requirement of any further approval or finding by the
shareholders, the Board of Directors, or independent legal counsel,
against all expense, liability and loss (including attorneys’
fees, costs, judgments, fines, ERISA excise taxes or penalties and
amounts to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith, and such indemnification
shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs,
executors and administrators.
11.2
Limitations on
Indemnification. Notwithstanding Section 11.1, no
indemnification shall be provided hereunder to any such person to
the extent that such indemnification would be prohibited by the
Colorado Corporation Code or other applicable law as then in
effect, nor, except as provided in Section 11.4 with respect to
proceedings seeking to enforce rights to indemnification, shall the
Corporation indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such
person except where such proceeding (or part thereof) was
authorized by the Board of Directors of the
Corporation.
11.3
Advancement of
Expenses. The right to indemnification conferred in this
Article 11 shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance
of its final disposition, except where the Board of Directors shall
have adopted a resolution expressly disapproving such advancement
of expenses; provided, however, that the payment of
such expenses in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay
all amounts so advanced if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under
this Article or otherwise.
11.4
Right to Enforce
Indemnification. If a claim under Section 11.1 is not paid
in full by the Corporation within sixty (60) days after a written
claim has been received by the Corporation, or if a claim for
expenses incurred in defending a proceeding in advance of its final
disposition authorized under Section 11.3 is not paid within twenty
days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, to the
extent successful in whole or in part, the claimant shall be
entitled to be paid also the expense, including reasonable
attorneys fees, of prosecuting such claim. The claimant shall be
presumed to be entitled to indemnification hereunder upon
submission of a written claim (and, in an action brought to enforce
a claim for expenses incurred in defending any proceeding in
advance of its final disposition, where the required undertaking
has been tendered to the Corporation), and thereafter the
Corporation shall have the burden of proof to overcome the
presumption that the claimant is so entitled. It shall be a defense
to any such action (other than an action with respect to expenses
authorized under Section 11.3) that the claimant has not met the
standards of conduct which make it permissible hereunder or under
the Colorado Corporation Code for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to
the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper
in the circumstances because he or she has met the applicable
standard of conduct set forth herein or in the Colorado Corporation
Code nor (except as provided in Section 11.3) an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the claimant
is not entitled to indemnification or to the reimbursement or
advancement of expenses shall be a defense to the action or create
a presumption that the claimant is not so entitled.
11.5
Nonexclusivity. The
right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition
conferred in this Article 11 shall not be exclusive of any other
right which any person may have or hereafter acquire under any
statute, provision of the Articles of Incorporation or the Bylaws,
agreement, vote of shareholders or disinterested directors or
otherwise.
11.6
Indemnification of
Employees and Agents. The Corporation may, by action of its
Board of Directors from time to time, provide indemnification and
pay expenses in advance of the final disposition of a proceeding to
employees and agents of the Corporation on the same terms and with
the same scope and effect as the provisions of this Article 11 with
respect to the indemnification and advancement of expenses of
directors and officers of the Corporation or pursuant to rights
granted pursuant to, or provided by, the Colorado Corporation Code
or on such other terms as the Board may deem proper.
11.7
Insurance and Other
Security. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the Colorado Corporation Code. The Corporation may enter into
contracts with any director or officer of the Corporation in
furtherance of the provisions of this Section and may create a
trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
11.8
Amendment or
Modification. This Article 11 may be altered or amended as
provided in Article 13 at any time, but no such amendment shall
have the effect of diminishing the rights of any person who is or
was an officer or director as to any acts or omissions taken or
omitted to be taken prior to the effective date of such
amendment.
11.9
Effect of Article.
The rights conferred by this Article 11 shall be deemed to be
contract rights between the Corporation and each person who is or
was a director or officer. The Corporation expressly intends each
such person to rely on the rights conferred hereby in performing
his or her respective duties on behalf of the
Corporation.
ARTICLE
12
FISCAL YEAR
The
fiscal year of the Corporation shall be the calendar
year.
ARTICLE
13
BYLAW AMENDMENTS
The
Bylaws may be amended, repealed or adopted by the majority vote of
the Board of Directors at any regular or special meeting, subject
to any limitations prescribed by law, the Articles of Incorporation
of these Bylaws.
ARTICLE
14
MISCELLANEOUS STATUTORY RESTRICTION
No
loans shall be made by the Corporation to its directors unless
first approved in the manner required by law.
ARTICLE
15
MISCELLANEOUS PROCEDURAL PROVISIONS
The
Board of Directors may adopt rules of procedure to govern any
meetings of shareholders or directors to the extent not
inconsistent with law, the Restated Articles of Incorporation, or
these Bylaws, as they are in effect from time to time. In the
absence of any rules of procedures adopted by the Board of
Directors, the Chairman of the meeting shall make all decisions
regarding such procedures for any meeting.
ARTICLE
16
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The
President of the Corporation is authorized to vote, represent and
exercise on behalf of the Corporation all rights incident to any
and all shares of other corporations standing in the name of the
Corporation. Said authority may be exercised by such officer either
in person or by proxy or power of attorney duly executed by said
officer.