Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
GOLD RESOURCE CORPORATION
Article I
OFFICES AND RECORDS
1. PRINCIPAL AND OTHER OFFICES. The principal office
of the Corporation may be located within or outside the State of Colorado as set forth in the articles of incorporation, provided that
the board of directors of the Corporation may at any time change the location of the principal office by making the appropriate filing
with the Colorado Secretary of State. The Corporation may have other offices, both within and outside the State of Colorado, as the Board
of Directors may designate, as the business of the Corporation may require, or as may be desirable.
2. REGISTERED AGENT. The registered agent’s
name and address of the Corporation shall be as set forth in the Corporation’s articles of incorporation. The Board of Directors
may at any time change the registered agent and office by making the appropriate filing with the Secretary of State.
3. BOOKS AND RECORDS. Any records maintained by
the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be maintained
on any information storage device or method; provided that the records so kept can be converted into readable form within a reasonable
time. The Corporation shall so convert any records so kept upon the written request of any person entitled to inspect such records pursuant
to applicable law.
Article II
SHAREHOLDERS
1. ANNUAL SHAREHOLDERS' MEETING. The annual shareholders'
meeting shall be held on the date and at the time and place fixed from time to time by the board of directors within one year following
the close of the Corporation’s latest fiscal year. The annual meeting may be held within or outside the State of Colorado, as determined
by the board of directors.
2. SPECIAL SHAREHOLDERS' MEETING. A special shareholders'
meeting for any purpose or purposes, may be called by the board of directors or the president. The Corporation shall also hold a special
shareholders' meeting in the event it receives, in the manner specified in Section VII.3., one or more written demands for the meeting,
stating the purpose or purposes for which it is to be held, signed and dated by the holders of shares representing not less than one-tenth
of all of the votes entitled to be cast on any issue at the meeting. Special meetings shall be held at the principal office of the Corporation
or at such other place as the board of directors may determine.
3. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS.
(a) In order to make a determination of shareholders
(1) entitled to notice of or to vote at any shareholders' meeting or at any adjournment of a shareholders' meeting, (2) entitled
to demand a special shareholders' meeting, (3) entitled to take any other action, (4) entitled to receive payment of a share
dividend or a distribution, or (5) for any other purpose, the board of directors may fix a future date as the record date for such
determination of shareholders. The record date may be fixed not more than seventy days nor less than ten days before the date of the proposed
action.
(b) Unless otherwise specified when the record
date is fixed, the time of day for determination of shareholders shall be as of the Corporation's close of business on the record date.
(c) A determination of shareholders entitled
to be given notice of or to vote at a shareholders' meeting is effective for any adjournment of the meeting unless the board of directors
fixes a new record date, which the board shall do if the meeting is adjourned more than one hundred twenty days after the date fixed for
the original meeting.
(d) If no record date is otherwise fixed,
the record date for determining shareholders entitled to be given notice of and to vote at an annual or special shareholders' meeting
is the date before the first notice is given to shareholders.
(e) The record date for determining shareholders
entitled to take action without a meeting pursuant to Section 1.10 is the date a writing upon which the action is taken is first
received by the Corporation.
4. VOTING LIST.
(a) After a record date is fixed for a shareholders'
meeting, the secretary shall prepare a list of the names of all its shareholders who are entitled to be given notice of the meeting. The
list shall be arranged by voting groups and within each voting group by class or series of shares, shall be alphabetical within each class
or series, and shall show the address of, and the number of shares of each such class and series that are held by, each shareholder.
(b) The shareholders' list shall be available
for inspection by any shareholder, beginning the earlier of ten days before the meeting for which the list was prepared or two business
days after notice of the meeting is given and continuing through the meeting, and any adjournment thereof, at the Corporation's principal
office or at a place identified in the notice of the meeting in the city where the meeting will be held.
(c) The secretary shall make the shareholders'
list available at the meeting, and any shareholder or agent or attorney of a shareholder is entitled to inspect the list at any time during
the meeting or any adjournment.
5. NOTICE TO SHAREHOLDERS.
(a) The secretary shall give notice to shareholders
of the date, time, and place of each annual and special shareholders' meeting no fewer than ten nor more than sixty days before the date
of the meeting; except that, if the articles of incorporation are to be amended to increase the number of authorized shares, at least
thirty days notice shall be given. Except as otherwise required by the Colorado Business Corporation Act, the secretary shall be required
to give such notice only to shareholders entitled to vote at the meeting.
(b) Notice of an annual shareholders' meeting
need not include a description of the purpose or purposes for which the meeting is called unless a purpose of the meeting is to consider
an amendment to the articles of incorporation, a restatement of the articles of incorporation, a plan of merger or share exchange, disposition
of substantially all of the property of the Corporation, consent by the Corporation to the disposition of property by another entity,
or dissolution of the Corporation.
(c) Notice of a special shareholders' meeting
shall include a description of the purpose or purposes for which the meeting is called.
(d) Notice of a shareholders' meeting shall
be in writing and shall be given
(1) by deposit in the United States
mail, properly addressed to the shareholder's address shown in the Corporation's current record of shareholders, first class postage prepaid,
and, if so given, shall be effective when mailed; or
(2) by telegraph, teletype, electronically
transmitted facsimile, electronic mail, mail, or private carrier or by personal delivery to the shareholder, and, if so given, shall be
effective when actually received by the shareholder.
(e) If an annual or special shareholders'
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time, or place if the new date, time,
or place is announced at the meeting before adjournment; provided, however, that, if a new record date for the adjourned meeting is fixed
pursuant to Section I.3.(c), notice of the adjourned meeting shall be given to persons who are shareholders as of the new record
date.
(f) If three successive notices are given
by the Corporation, whether with respect to a shareholders' meeting or otherwise, to a shareholder and are returned as undeliverable,
no further notices to such shareholder shall be necessary until another address for the shareholder is made known to the Corporation.
6. QUORUM AND CONDUCT OF MEETINGS.
(a) Except as otherwise provided by statute
or by the articles of incorporation, the presence in person or by proxy of a majority of the voting power of the outstanding shares of
the Corporation entitled to vote shall constitute a quorum at a meeting of shareholders. If less than a majority of voting power of the
outstanding shares are represented at a meeting, either the presiding officer of the meeting or a majority of the voting power of the
shares so represented may adjourn the meeting from time to time until the requisite amount of shares for a quorum shall be present or
represented. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted
at the meeting as originally called. A quorum, once established, shall not be broken by the withdrawal of enough outstanding shares of
the Corporation entitled to vote that leaves less than a quorum.
(b) The date and time of the opening and the
closing of the polls for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting by the chairman
of the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of shareholders
as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors,
the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to shareholders
of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman
of the meeting, meetings of shareholders shall not be required to be conducted in accordance with the rules of parliamentary procedure.
7. VOTING ENTITLEMENT OF SHARES. Except as stated
in the articles of incorporation, each outstanding share, regardless of class, is entitled to one vote, and each fractional share is entitled
to a corresponding fractional vote, on each matter voted on at a shareholders' meeting.
8. PROXIES; ACCEPTANCE OF VOTES AND CONSENTS.
(a) A shareholder may vote either in person
or by proxy.
(b) An appointment of a proxy is not effective
against the Corporation until the appointment is received by the Corporation. An appointment is valid for eleven months unless a different
period is expressly provided in the appointment form.
(c) The Corporation may accept or reject any
appointment of a proxy, revocation of appointment of a proxy, vote, consent, waiver, or other writing purportedly signed by or for a shareholder,
if such acceptance or rejection is in accordance with the provisions of Sections 7-107-203 and 7-107-205 of the Colorado Business Corporation
Act.
9. WAIVER OF NOTICE.
(a) A shareholder may waive any notice required
by the Colorado Business Corporation Act, the articles of incorporation or these bylaws, whether before or after the date or time stated
in the notice as the date or time when any action will occur or has occurred. The waiver shall be in writing, be signed by the shareholder
entitled to the notice, and be delivered to the Corporation for inclusion in the minutes or filing with the corporate records, but such
delivery and filing shall not be conditions of the effectiveness of the waiver.
(b) A shareholder's attendance at a meeting
waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting because of lack of notice or defective notice, and waives objection to consideration
of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
10. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any
action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if all of the shareholders entitled
to vote thereon consent to such action in writing. Action taken pursuant to this section shall be effective when the Corporation has received
writings that describe and consent to the action, signed by all of the shareholders entitled to vote thereon. Action taken pursuant to
this section shall be effective as of the date the last writing necessary to effect the action is received by the Corporation, unless
all of the writings necessary to effect the action specify another date, which may be before or after the date the writings are received
by the Corporation. Such action shall have the same effect as action taken at a meeting of shareholders and may be described as such in
any document. Any shareholder who has signed a writing describing and consenting to action taken pursuant to this section may revoke such
consent by a writing signed by the shareholder describing the action and stating that the shareholder's prior consent thereto is revoked,
if such writing is received by the Corporation before the effectiveness of the action.
11. MEETINGS BY TELECOMMUNICATIONS. To the extent
provided by resolution of the board of directors or in the notice of the meeting, any or all of the shareholders may participate in an
annual or special shareholders’ meeting by, or the meeting may be conducted through the use of, any means of communication by which
all persons participating in the meeting may hear each other during the meeting. A shareholder participating in a meeting by this means
is deemed to be present in person at the meeting.
Article II
DIRECTORS
1. AUTHORITY OF THE BOARD OF DIRECTORS. The corporate
powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction
of, a board of directors.
2. NUMBER. Subject to the provisions of the articles
of incorporation, the number of directors shall be a minimum of one (1) and a maximum of five (5), and may be increased or decreased
by resolution adopted by the board of directors from time to time, but no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director.
3. QUALIFICATION. Directors shall be natural persons
at least eighteen years old but need not be residents of the State of Colorado or shareholders of the Corporation.
4. ELECTION. The board of directors shall be elected
at the annual meeting of shareholders or at a special meeting called for that purpose.
5. TERM. Each director shall be elected to hold
office until the next annual meeting of shareholders, the director's successor is elected and qualified, or the director’s earlier
death, resignation or removal.
6. RESIGNATION. A director may resign at any time
by giving written notice of his or her resignation to any other director or (if the director is not also the secretary) to the secretary.
The resignation shall be effective when it is received by the other director or secretary, as the case may be, unless the notice of resignation
specifies a later effective date. Acceptance of such resignation shall not be necessary to make it effective unless the notice so provides.
7. REMOVAL. Any director may be removed by the
shareholders of the voting group that elected the director, with or without cause at a meeting called for that purpose. The notice of
the meeting shall state that the purpose, or one of the purposes, of the meeting is removal of the director. A director may be removed
only if the number of votes cast in favor of removal exceeds the number of votes cast against removal.
8. VACANCIES.
(a) If a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors:
(1) The shareholders may fill the
vacancy at the next annual meeting or at a special meeting called for that purpose; or
(2) The board of directors may fill
the vacancy; or
(3) If the directors remaining in
office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all the directors
remaining in office.
(b) Notwithstanding Section II.8.(a),
if the vacant office was held by a director elected by a voting group of shareholders, then, if one or more of the remaining directors
were elected by the same voting group, only such directors are entitled to vote to fill the vacancy if it is filled by directors, and
they may do so by the affirmative vote of a majority of such directors remaining in office; and only the holders of shares of that voting
group are entitled to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific
later date, by reason of a resignation that will become effective at a later date under Section II.6. or otherwise, may be filled
before the vacancy occurs, but the new director may not take office until the vacancy occurs.
9. MEETINGS. The board of directors may hold regular
or special meetings in or out of Colorado. A regular meeting shall be held in the principal office of the Corporation on such date or
dates, and at such time, as may be established by resolution of the board of directors. If the board shall establish a date and time for
a regular meeting of the board, such meeting may be held without notice of the date, time, place, or purpose of the meeting. The board
of directors may, by resolution, establish other dates, times and places for additional regular meetings, which may thereafter be held
without further notice. Special meetings may be called by the president or by any two directors and shall be held at the principal office
of the Corporation unless another place is consented to by every director. At any time when the board consists of a single director, that
director may act at any time, date, or place without notice.
10. NOTICE OF SPECIAL MEETING. Notice of a special
meeting shall be given to every director at least twenty four hours before the time of the meeting, stating the date, time, and place
of the meeting. The notice need not describe the purpose of the meeting. Notice may be given orally to the director, personally or by
telephone or other wire or wireless communication. Notice may also be given in writing by telegraph, teletype, electronically transmitted
facsimile, electronic mail, mail, or private carrier. Notice shall be effective at the earliest of the time it is received; five days
after it is deposited in the United States mail, properly addressed to the last address for the director shown on the records of the Corporation,
first class postage prepaid; or the date shown on the return receipt if mailed by registered or certified mail, return receipt requested,
postage prepaid, in the United States mail and if the return receipt is signed by the director to which the notice is addressed.
11. QUORUM. Except as provided in Section II.8.,
a majority of the number of directors fixed in accordance with these Bylaws shall constitute a quorum for the transaction of business
at all meetings of the board of directors. The act of a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors, except as otherwise specifically required by law.
12. WAIVER OF NOTICE.
(a) A director may waive any notice of a meeting
before or after the time and date of the meeting stated in the notice. Except as provided by Section II.12.(b), the waiver shall
be in writing and shall be signed by the director. Such waiver shall be delivered to the secretary for filing with the corporate records,
but such delivery and filing shall not be conditions of the effectiveness of the waiver.
(b) A director's attendance at or participation
in a meeting waives any required notice to him or her of the meeting unless, at the beginning of the meeting or promptly upon his or her
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.
13. ATTENDANCE BY TELEPHONE. One or more directors
may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all
directors participating may hear each other during the meeting. A director participating in a meeting by this means is deemed to be present
in person at the meeting.
14. DEEMED ASSENT TO ACTION.
(a) A director who is present at a meeting
of the board of directors when corporate action is taken shall be deemed to have assented to all action taken at the meeting unless:
(1) The director objects at the
beginning of the meeting, or promptly upon his or her arrival, to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to any action taken at the meeting;
(2) The director contemporaneously
requests that his or her dissent or abstention as to any specific action taken be entered in the minutes of the meeting; or
(3) The director causes written
notice of his or her dissent or abstention as to any specific action to be received by the presiding officer of the meeting before adjournment
of the meeting or by the secretary (or, if the director is the secretary, by another director) promptly after adjournment of the meeting.
(b) The right of dissent or abstention pursuant
to this Section II.14. as to a specific action is not available to a director who votes in favor of the action taken.
15. ACTION BY DIRECTORS WITHOUT A MEETING. Any
action required or permitted by law to be taken at a board of directors' meeting may be taken without a meeting if all members of the
board consent to such action in writing. Action shall be deemed to have been so taken by the board at the time the last director signs
a writing describing the action taken, unless, before such time, any director has revoked his or her consent by a writing signed by the
director and received by the secretary or any other person authorized by the bylaws or the board of directors to receive such a revocation.
Such action shall be effective at the time and date it is so taken unless the directors establish a different effective time or date.
Such action has the same effect as action taken at a meeting of directors and may be described as such in any document.
16. NOMINATIONS OF DIRECTORS. The board of directors
may nominate persons to stand for election to the board of directors at any time prior to a meeting of shareholders at which directors
are to be elected. Any shareholder may nominate a person to stand for election to the board of directors provided such shareholder provides
written notification of the intention to nominate such persons at the next shareholder meeting not less than 90 days in advance of such
meeting, or the twentieth day following the day on which public announcement of the date of the shareholder meeting is made, if later,
and provided further such notice is accompanied by all information regarding the proposed nominee that is required to be disclosed in
solicitations of proxies with respect to nominees for election as directors, or is otherwise required, pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended, and information regarding all direct and indirect business or personal relationships
between the shareholder and the proposed nominee.
Article III
COMMITTEES OF THE BOARD OF DIRECTORS
1. COMMITTEES OF THE BOARD OF DIRECTORS.
(a) Subject to the provisions of Section 7-108-206
of the Colorado Business Corporation Act, the board of directors may create one or more committees and appoint one or more members of
the board of directors to serve on them. The creation of a committee and appointment of members to it shall require the approval of a
majority of all the directors in office when the action is taken, whether or not those directors constitute a quorum of the board.
(b) The provisions of these bylaws governing
meetings, action without meeting, notice, waiver of notice, and quorum and voting requirements of the board of directors apply to committees
and their members as well.
(c) To the extent specified by resolution
adopted from time to time by a majority of all the directors in office when the resolution is adopted, whether or not those directors
constitute a quorum of the board, each committee shall exercise the authority of the board of directors with respect to the corporate
powers and the management of the business and affairs of the Corporation; except that a committee shall not:
(1) Authorize distributions;
(2) Approve or propose to shareholders
action that the Colorado Business Corporation Act requires to be approved by shareholders;
(3) Fill vacancies on the board
of directors or on any of its committees;
(4) Amend the articles of incorporation
pursuant to Section 7-110-102 of the Colorado Business Corporation Act;
(5) Adopt, amend, or repeal bylaws;
(6) Approve a plan of merger not
requiring shareholder approval;
(7) Authorize or approve reacquisition
of shares, except according to a formula or method prescribed by the board of directors; or
(8) Authorize or approve the issuance
or sale of shares, or a contract for the sale of shares, or determine the designation and relative rights, preferences, and limitations
of a class or series of shares; except that the board of directors may authorize a committee or an officer to do so within limits specifically
prescribed by the board of directors.
(d) The creation of, delegation of authority
to, or action by, a committee does not alone constitute compliance by a director with applicable standards of conduct.
Article IV
OFFICERS
1. GENERAL. The Corporation shall have as officers
a president, a secretary, and a treasurer, who shall be appointed by the board of directors. The board of directors may appoint as additional
officers a chairman and other officers of the board. The board of directors, the president, and such other subordinate officers as the
board of directors may authorize from time to time, acting singly, may appoint as additional officers one or more vice presidents, assistant
secretaries, assistant treasurers, and such other subordinate officers as the board of directors, the president, or such other appointing
officers deem necessary or appropriate. The officers of the Corporation shall hold their offices for such terms and shall exercise such
authority and perform such duties as shall be determined from time to time by these Bylaws, the board of directors, or (with respect to
officers whom are appointed by the president or other appointing officers) the persons appointing them; provided, however, that the board
of directors may change the term of offices and the authority of any officer appointed by the president or other appointing officers.
Any two or more offices may be held by the same person. The officers of the Corporation shall be natural persons at least eighteen years
old.
2. TERM. Each officer shall hold office from the
time of appointment until the time of removal or resignation pursuant to Section IV.3. or until the officer's death.
3. REMOVAL AND RESIGNATION. Any officer appointed
by the board of directors may be removed at any time by the board of directors. Any officer appointed by the president or other appointing
officer may be removed at any time by the board of directors or by the person appointing the officer. Any officer may resign at any time
by giving written notice of resignation to any director (or to any director other than the resigning officer if the officer is also a
director), to the president, to the secretary, or to the officer who appointed the officer. Acceptance of such resignation shall not be
necessary to make it effective, unless the notice so provides.
4. PRESIDENT. The president shall preside at all
meetings of shareholders, and the president shall also preside at 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 instead of the president. Subject to the direction and control of the board of directors, the president shall be the chief
executive officer of the Corporation and as such shall have general and active management of the business of the Corporation and shall
see that all orders and resolutions of the board of directors are carried into effect. The president may negotiate, enter into, and execute
contracts, deeds, and other instruments on behalf of the Corporation as are necessary and appropriate to the conduct to the business and
affairs of the Corporation or as are approved by the board of directors. 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.
5. VICE PRESIDENT. The vice president, if any,
or, if there are more than one, the vice presidents in the order determined by the board of directors or the president (or. if no such
determination is made, in the order of their appointment), shall be the officer or officers next in seniority after the president. Each
vice president shall have such authority and duties as are prescribed by the board of directors or president. Upon the death, absence,
or disability of the president, the vice president, if any, or, if there are more than one, the vice presidents in the order determined
by the board of directors or the president, shall have the authority and duties of the president.
6. SECRETARY. The secretary shall be responsible
for the preparation and maintenance of minutes of the meetings of the board of directors and of the shareholders and of the other records
and information required to be kept by the Corporation under Section 7-116-101 of the Colorado Business Corporation Act and for authenticating
records of the corporation. The secretary shall also give, or cause to be given, notice of all meetings of the shareholders and special
meetings of the board of directors, keep the minutes of such meetings, have charge of the corporate seal, if any, and have authority to
affix the corporate seal to any instrument requiring it (and, when so affixed, it may be attested by the secretary's signature), be responsible
for the maintenance of all other corporate records and files and for the preparation and filing of reports to governmental agencies (other
than tax returns), and have such other authority and duties as are appropriate and customary for the office of secretary, except as the
same may be expanded or limited by the board of directors from time to time.
7. ASSISTANT SECRETARY. The assistant secretary,
if any, or, if there are more than one, the assistant secretaries in the order determined by the board of directors or the secretary (or,
if no such determination is made, in the order of their appointment) shall, under the supervision of the secretary, perform such duties
and have such authority as may be prescribed from time to time by the board of directors or the secretary. Upon the death, absence, or
disability of the secretary, the assistant secretary, if any, or, if there are more than one, the assistant secretaries in the order designated
by the board of directors or the secretary (or, if no such determination is made, in the order of their appointment), shall have the authority
and duties of the secretary.
8. TREASURER. The treasurer shall have control
of the funds and the care and custody of all stocks, bonds, and other securities owned by the Corporation, and shall be responsible for
the preparation and filing of tax returns. The treasurer shall receive all moneys paid to the Corporation and, subject to any limits imposed
by the board of directors, shall have authority to give receipts and vouchers, to sign and endorse checks and warrants in the Corporation's
name and on the Corporation's behalf, and give full discharge for the same. The treasurer shall also have charge of disbursement of funds
of the Corporation, shall keep full and accurate records of the receipts and disbursements, and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as shall be designated by the board of directors. The treasurer
shall have such additional authority and duties as are appropriate' and customary for the office of treasurer, except as the same may
be expanded or limited by the board of directors from time to time.
9. ASSISTANT TREASURER. The assistant treasurer,
if any, or, if there are more than one, the assistant treasurers in the order determined by the board of directors or the treasurer (or,
if no such determination is made, in the order of their appointment) shall, under the supervision of the treasurer, have such authority
and duties as may be prescribed from time to time by the board of directors or the treasurer. Upon the death, absence, or disability of
the treasurer, the assistant treasurer, if any, or if there are more than one, the assistant treasurers in the order determined by the
board of directors or the treasurer (or, if no such determination is made, in the order of their appointment), shall have the authority
and duties of the treasurer.
10. COMPENSATION. Officers shall receive such compensation
for their services as may be authorized or ratified by the board of directors. Election or appointment of an officer shall not of itself
create a contractual right to compensation for services performed as such officer.
Article V
INDEMNIFICATION
1. DEFINITIONS. As used in this article:
(a) "Corporation" includes any domestic
or foreign entity that is a predecessor of the Corporation by reason of a merger or other transaction in which the predecessor's existence
ceased upon consummation of the transaction.
(b) "Director" means an individual
who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's
request as a director, officer, partner, trustee, employee, fiduciary, or agent of another domestic or foreign corporation or other person
or of an employee benefit plan. A director is considered to be serving an employee benefit plan at the Corporation's request if his or
her duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in
or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative
of a director.
(c) "Expenses" includes counsel
fees.
(d) "Liability" means the obligation
incurred with respect to a proceeding to pay a judgment, settlement, penalty, fine, including an excise tax assessed with respect to an
employee benefit plan, or reasonable expenses.
(e) "Official capacity" means, when
used with respect to a director, the office of director in the Corporation and, when used with respect to a person other than a director
as contemplated in Section V.2.(a), the office in the 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.
(f) "Party" includes a person who
was, is, or is threatened to be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
2. AUTHORITY TO INDEMNIFY DIRECTORS.
(a) Except as provided in Section V.2.(d),
the Corporation shall indemnify a person made a party to a proceeding because the person is or was a director against liability incurred
in the proceeding if:
(1) The person conducted himself
or herself in good faith; and
(2) The person reasonably believed:
(A) In the case of conduct in an official
capacity with the Corporation, that his or her conduct was in the Corporation's best interests; and
(B) In all other cases, that his or
her conduct was at least not opposed to the Corporation's best interests; and
(3) In the case of any criminal
proceeding, the person had no reasonable cause to believe his or her conduct was unlawful.
(b) 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 of Section V.2.(a)(2)(B). 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 requirements of Section V.2.(a)(1).
(c) The termination of a proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director
did not meet the standard of conduct described in this Section V.2.
(d) The Corporation may not indemnify a director
under this Section V.2.
(1) In connection with a proceeding
by or in the right of the Corporation in which the director was adjudged liable to the Corporation; or
(2) In connection with any other
proceeding charging that the director derived an improper personal benefit, whether or not involving action in an official capacity, in
which proceeding the director was adjudged liable on the basis that he or she derived an improper personal benefit.
(e) Indemnification permitted under this Section V.2
in connection with a proceeding by or in the right of the Corporation is limited to reasonable expenses incurred in connection with the
proceeding.
3. MANDATORY INDEMNIFICATION OF DIRECTORS. The
Corporation shall indemnify a person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which
the person was a party because the person is or was a director, against reasonable expenses incurred by him or her in connection with
the proceeding.
4. ADVANCE OF EXPENSES TO DIRECTORS.
(a) The Corporation may pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:
(1) The director furnishes to the
Corporation a written affirmation of the director's good faith belief that he or she has met the standard of conduct described in Section V.2.
(2) The director furnishes to the
Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined
that he or she did not meet the standard of conduct; and
(3) A determination is made that
the facts then known to those making the determination would not preclude indemnification under this article.
(b) The undertaking required by Section V.4.(a)(2) shall
be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability
to make repayment.
(c) Determinations and authorizations of payments
under this Section V.4 shall be made in the manner specified in Section V.6.
5. COURT-ORDERED INDEMNIFICATION OF DIRECTORS.
A director who is or was a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court
of competent jurisdiction. On receipt of an application, the court, after giving any notice the court considers necessary, may order indemnification
in the following manner:
(a) If it determines that the director is
entitled to mandatory indemnification under Section V.3., the court shall order indemnification, in which case the court shall also
order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification.
(b) If it determines that the director is
fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard
of conduct set forth in Section V.2.(a) or was adjudged liable in the circumstances described in Section V.2.(d), the court
may order such indemnification as the court deems proper; except that the indemnification with respect to any proceeding in which liability
shall have been adjudged in the circumstances described in Section V.2.(d) is limited to reasonable expenses incurred in connection
with the proceeding and reasonable expenses incurred to obtain court-ordered indemnification.
6. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION
OF DIRECTORS.
(a) The Corporation may not indemnify a director
under Section V.2 unless authorized in the specific case after a determination has been made that indemnification of the director
is permissible in the circumstances because the director has met the standard of conduct set forth in Section V.2. The Corporation
shall not advance expenses to a director under Section V.4 unless authorized in the specific case after the written affirmation and
undertaking required by Section V.4(a)(1) and V.4.(a)(2) are received and the determination required by Section V.4.(a)(3) has
been made.
(b) The determinations required by Section V.6.(a) shall
be made:
(1) By the board of directors by
a majority vote of those present at a meeting at which a quorum is present, and only those directors not parties to the proceeding shall
be counted in satisfying the quorum; or
(2) If a quorum cannot be obtained,
by a majority vote of a committee of the board of directors designated by the board of directors, 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.
(c) If a quorum cannot be obtained as contemplated
in Section V.6.(b)(1), and a committee cannot be established under Section V.6.(b)(2) if a quorum is obtained or a committee
is designated, if a majority of the directors constituting such quorum or such committee so directs, the determination required to be
made by Section V.6.(a) shall be made:
(1) By independent legal counsel
selected by a vote of the board of directors or the committee in the manner specified in Section V.6.(b)(1) or V.6.(b)(2), or,
if a quorum of the full board cannot be obtained and a committee cannot be established, by independent legal counsel selected by a majority
vote of the full board of directors; or
(2) By the shareholders.
(d) 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.
7. INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES,
AND AGENTS.
(a) An officer is entitled to mandatory indemnification
under Section V.3. and is entitled to apply for court-ordered indemnification under Section V.5., in each case to the same extent
as a director;
(b) The Corporation may indemnify and advance
expenses to an officer, employee, fiduciary, or agent of the Corporation to the same extent as to a director; and
(c) The Corporation may also indemnify and
advance expenses to an officer, employee, fiduciary, or agent who is not a director 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.
8. INSURANCE. The Corporation may purchase and
maintain insurance on behalf of a 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 another domestic or foreign corporation or other person or of an
employee benefit plan, against liability asserted against or incurred by the person in that capacity or arising from his or her status
as a director, officer, employee, fiduciary, or agent, whether or not the Corporation would have power to indemnify the person against
the same liability under Section V.2., V.3., or V.7. Any such insurance may be procured from any insurance company designated by
the board of directors, whether such insurance company is formed under the laws of this state or any other jurisdiction of the United
States or elsewhere, including any insurance company in which the Corporation has an equity or any other interest through stock ownership
or otherwise.
9. NOTICE TO SHAREHOLDERS OF INDEMNIFICATION OF
DIRECTOR. If the Corporation indemnifies or advances expenses to a director under this article in connection with a proceeding by or in
the right of the Corporation, the Corporation shall give written notice of the indemnification or advance 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 VI
SHARES
1. CERTIFICATES. Shares of the capital stock of
the Corporation may be represented by certificates, or may be uncertificated shares that are be evidenced by a book entry system maintained
by the registrar of such stock, or a combination of both. To the extent that shares are in certificated form, such certificates shall
be in a form approved by the board of directors and signed by the chairman or vice chairman of the board of directors (if any), or the
president or any vice president, and by the secretary or an assistant secretary or the treasurer or an assistant treasurer. 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
(a) That the Corporation is organized under
the laws of the State of Colorado;
(b) The name of the person to whom issued;
(c) The number and class of the shares and
the designation of the series, if any, that the certificate represents;
(d) The par value, if any, of each share represented
by the certificate;
(e) A summary, on the front or the back, of
the designations, preferences, limitations, and relative rights applicable to each class, the variations in preferences, limitations,
and rights determined for each series, and the authority of the board of directors to determine variations for future classes or series.
A conspicuous statement, on the front or the back, that the Corporation will furnish to the shareholder, on request in writing and without
charge, information concerning the designations, preferences, limitations, and relative rights applicable to each class, the variations
in preferences, limitations, and rights determined for each series, and the authority of the board of directors to determine variations
for future classes or series; and
(f) Any restrictions imposed by the Corporation
upon the transfer of the shares represented by the certificate.
2. FACSIMILE SIGNATURES. Where a certificate is
signed
(a) By a transfer agent other than the Corporation
or its employee, or
(b) By a registrar other than the Corporation
or its employee, any or all of the officers' signatures on the certificate required by Section VI.1. may be facsimile. If any officer,
transfer agent or registrar who has signed, or whose facsimile signature or signatures have been placed upon, any certificate, shall cease
to be such officer, transfer agent, or registrar, whether because of death, resignation, or otherwise, before the certificate is issued
by the Corporation, it may nevertheless be issued by the Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
3. TRANSFERS OF SHARES. Transfers of shares shall
be made on the books of the Corporation only upon presentation of the certificate representing such shares properly endorsed by the person
or persons appearing upon the face of such certificate to be the owner, or upon receipt of proper documentation of transfer if such shares
are uncertificated, except as may otherwise be expressly provided by the statutes of the State of Colorado or by order of a court of competent
jurisdiction. The officers or transfer agents of the Corporation may, in their discretion, require a signature guaranty before making
any transfer. The Corporation shall be entitled to treat the person in whose name any shares are registered on its books as the owner
of those shares for all purposes and shall not be bound to recognize any equitable or other claim or interest in the shares on the part
of any other person, whether or not the Corporation shall have notice of such claim or interest.
4. SHARES HELD FOR ACCOUNT OF ANOTHER. The board
of directors may adopt by resolution a procedure whereby a shareholder of the Corporation may certify in writing to the Corporation that
all or a portion of the shares registered in the name of such shareholder are held for the account of a specified person or persons. The
resolution shall set forth
(a) The classification of shareholders who
may certify;
(b) The purpose or purposes for which the
certification may be made;
(c) The form of certification and information
to be contained herein;
(d) If the certification is with respect to
a record date, the time after the record date within which the certification must be received by the Corporation; and
(e) Such other provisions with respect to
the procedure as are deemed necessary or desirable. Upon receipt by the Corporation of a certification complying with the procedure, the
persons specified in the certification shall be deemed, for the purpose or purposes set forth in the certification, to be the holders
of record of the number of shares specified in place of the shareholder making the certification.
Article VII
MISCELLANEOUS
1. CORPORATE SEAL. The board of directors may adopt
a seal, circular in form and bearing the name of the Corporation and the words "SEAL" and "COLORADO," which, when
adopted, shall constitute the seal of the Corporation. The seal may be used by causing it or a facsimile of it to be impressed, affixed,
manually reproduced, or rubber stamped with indelible ink. Even if the Corporation has adopted a corporate seal, properly authorized actions
of the Corporation are effective whether or not any writing evidencing such action is sealed.
2. FISCAL YEAR. The board of directors may, by
resolution, adopt a fiscal year for the Corporation.
3. 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 received
(a) At the registered office of the Corporation
in the State of Colorado;
(b) 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 the State of Colorado
designating a principal office) addressed to the attention of the secretary of the Corporation;
(c) By the secretary of the corporation wherever
the secretary may be found; or
(d) By any other person authorized from time
to time by the board of directors, the president, or the secretary to receive such writings, wherever such person is found.
4. FACSIMILE SIGNATURE. Where, under these Bylaws
or under the Colorado Business Corporation Act, as amended, a signature of a director, officer or shareholder of the Corporation is required,
such signature may be presented either in original form or by a facsimile copy thereof, to the extent permitted by law.
5. AMENDMENT OF BYLAWS. The shareholders shall
have the power to adopt, amend, repeal, or otherwise alter the foregoing Bylaws. The board of directors may also make, amend, or repeal,
subject to any provision of the Colorado Business Corporation Act, as amended, the articles of incorporation, or a bylaw adopted by the
shareholders that reserves the power exclusively to the shareholders or otherwise restricts the authority of the board of directors.
