Attached files
| file | filename |
|---|---|
| 8-K - MAINBODY - DELTA OIL & GAS INC | mainbody.htm |
| EX-10.1 - EX101 - DELTA OIL & GAS INC | ex101.htm |
| EX-10.3 - EX103 - DELTA OIL & GAS INC | ex103.htm |
| EX-10.2 - EX102 - DELTA OIL & GAS INC | ex102.htm |
Exhibit
3.1
Amendments
to
the Bylaws
of
Delta
Oil & gas, Inc.
The
following amendments to the bylaws (the “Bylaws”) of Delta Oil &
Gas, Inc., a Colorado corporation (the “Corporation”), were adopted by the
Board of Directors of the Corporation (“Board”), at a meeting of the Board on
March 8, 2010:
Amendments to
Bylaws
Resolved,
that Article II, Paragraph 2 of the Bylaws is hereby amended and restated in its
entirety as follows:
“2.
Special Meetings.
(a) A
special meeting of stockholders may be called only by (i) the President or
(ii) a majority of the Board of Directors and shall be called by the
President upon the demand, in accordance with this Paragraph 2, of the
holders of record of shares representing at least 10% of all the votes entitled
to be cast on any issue proposed to be considered at the special
meeting.
(b) In
order that the Corporation may determine the stockholders entitled to demand a
special meeting, the Board of Directors may fix a record date to determine the
stockholders entitled to make such a demand (the “Demand Record Date”). The
Demand Record Date shall not precede the date upon which the resolution fixing
the Demand Record Date is adopted by the Board of Directors and shall not be
more than ten days after the date upon which the resolution fixing the Demand
Record Date is adopted by the Board of Directors. Any stockholder of record
seeking to have stockholders demand a special meeting shall, by sending written
notice to the Secretary of the Corporation by hand or by certified or registered
mail, return receipt requested, request the Board of Directors to fix a Demand
Record Date. The Board of Directors shall promptly, but in all events within ten
days after the date on which a valid request to fix a Demand Record Date is
received, adopt a resolution fixing the Demand Record Date and shall make a
public announcement of such Demand Record Date. If no Demand Record Date has
been fixed by the Board of Directors within ten days after the date on which
such request is received by the Secretary, then the Demand Record Date shall be
the 10th day after the first date on which a valid written request to set a
Demand Record Date is received by the Secretary. To be valid, such written
request shall set forth the purpose or purposes for which the special meeting is
to be held, shall be signed by one or more stockholders of record and by the
beneficial owner or owners, if any, on whose behalf the request is made, shall
bear the date of signature of each such stockholder and any such beneficial
owner and shall set forth all information about each such stockholder and any
such beneficial owner that would be required to be set forth in a stockholder’s
notice described in Paragraph 12(a)(ii) of Article II as if the notice
related to an annual meeting.
(c) In
order for a stockholder or stockholders to demand a special meeting, a written
demand or demands for a special meeting by the holders of record as of the
Demand Record Date of shares representing at least 10% of all the votes entitled
to be cast on any issue proposed to be considered at the special meeting,
calculated as if the Demand Record Date were the record date for the special
meeting, must be delivered to the Corporation. To be valid, each written demand
by a stockholder for a special meeting shall set forth the specific purpose or
purposes for which the special meeting is to be held (which purpose or purposes
shall be limited to the purpose or purposes set forth in the written request to
set a Demand Record Date received by the Corporation pursuant to Paragraph
2(b)), shall be signed by one or more stockholders of record and by the
beneficial owner or owners, if any, on whose behalf the request is made, shall
bear the date of signature of each such stockholder and any such beneficial
owner, and shall set forth the name and address, as they appear in the
Corporation’s books, of each such stockholder and any such beneficial owner
signing such demand and the class and number of shares of the Corporation which
are owned of record and/or beneficially by each such stockholder and any such
beneficial owner, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary within sixty days after the Demand Record Date.
- 1 -
(d) The
Corporation shall not be required to call a special meeting upon stockholder
demand unless, in addition to the documents required by Paragraph 2(c), the
Secretary receives a written agreement signed by each Soliciting Stockholder (as
defined below) pursuant to which each Soliciting Stockholder, jointly and
severally, agrees to pay the Corporation’s costs of holding the special meeting,
including the costs of preparing and mailing proxy materials for the
Corporation’s own solicitation, provided that if each of the resolutions
introduced by any Soliciting Stockholder at such meeting is adopted, and each of
the individuals nominated by or on behalf of any Soliciting Stockholder for
election as a director at such meeting is elected, then the Soliciting
Stockholders shall not be required to pay such costs. For purposes of these
Bylaws, the following terms shall have the respective meanings set forth
below:
(i)
“Affiliate” of any Person (as defined herein) shall mean any Person controlling,
controlled by or under common control with such first Person.
(ii)
“Participant” shall have the meaning assigned to such term in Rule 14a-12
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(iii)
“Person” shall mean any individual, firm, corporation, partnership, joint
venture, association, trust, unincorporated organization or other
entity.
(iv)
“Proxy” shall have the meaning assigned to such term in Rule 14a-1 promulgated
under the Exchange Act.
(v)
“Solicitation” shall have the meaning assigned to such term in Rule 14a-1
promulgated under the Exchange Act.
(vi)
“Soliciting Stockholder” shall mean, with respect to any special meeting of
stockholders demanded by a stockholder or stockholders, each of the following
Persons:
(A) if
the number of stockholders signing the demand or demands of meeting delivered to
the Corporation pursuant to Paragraph 2(c) is ten or fewer, each Person signing
any such demand; or
(B) if
the number of stockholders signing the demand or demands of meeting delivered to
the Corporation pursuant to Paragraph 2(c) is more than ten, each Person who
either (I) was a Participant in any Solicitation of such demand or demands
or (II) at the time of the delivery to the Corporation of the documents
described in Paragraph 2(c) had engaged or intends to engage in any Solicitation
of Proxies for use at such special meeting (other than a Solicitation of Proxies
on behalf of the Corporation).
A
“Soliciting Stockholder” shall also mean each Affiliate of a Soliciting
Stockholder described in clause (A) or (B) above who is a member of
such Soliciting Stockholder’s “group” for purposes of Rule 13d-5(b) under
the Exchange Act, and any other Affiliate of such a Soliciting Stockholder, if a
majority of the directors then in office determines, reasonably and in good
faith, that such Affiliate should be required to sign the written notice
described in Paragraph 2(c) and/or the written agreement described in this
Paragraph 2(d) to prevent the purposes of this Paragraph 2 from being
evaded.
(e)
Except as provided in the following sentence, any special meeting shall be held
at such hour and day as may be designated by whichever of the President or the
Board of Directors shall have called such meeting. In the case of any special
meeting called by the President upon the demand of stockholders (a “Demand
Special Meeting”), such meeting shall be held at such hour and day as may be
designated by the Board of Directors; provided, however, that the date of any
Demand Special Meeting shall be not more than sixty days after the Meeting
Record Date (as defined in Article XI, Paragraph 3); and provided further that in the
event that the directors then in office fail to designate an hour and date for a
Demand Special Meeting within ten days after the date that valid written demands
for such meeting by the holders of record as of the Demand Record Date of shares
representing at least 10% of all the votes entitled to be cast on each issue
proposed to be considered at the special meeting, calculated as if the Demand
Record Date were the record date for the special meeting, are delivered to the
Corporation (the “Delivery Date”), then such meeting shall be held at 2:00 P.M.
local time on the 100th day after the Delivery Date or, if such 100th day is not
a Business Day, on the first preceding Business Day. In fixing a meeting date
for any special meeting, the President or the Board of Directors may consider
such factors as he, she or it deems relevant within the good faith exercise of
his, her or its business judgment, including, without limitation, the nature of
the action proposed to be taken, the facts and circumstances surrounding any
demand for such meeting, and any plan of the Board of Directors to call an
annual meeting or a special meeting for the conduct of related
business.
- 2 -
(f) The
Corporation may engage one or more regionally or nationally recognized
independent inspectors of elections to act as agents of the Corporation for the
purpose of promptly performing a ministerial review of the validity of any
purported written demand or demands for a special meeting received by the
Secretary. For the purpose of permitting the inspectors to perform such review,
no purported demand shall be deemed to have been delivered to the Corporation
until the earlier of (i) five Business Days (as defined below) following
receipt by the Secretary of such purported demand and (ii) such date as the
independent inspectors certify to the Corporation that the valid demands
received by the Secretary represent at least 10% of all the votes entitled to be
cast on each issue proposed to be considered at the special meeting calculated
as if the Demand Record Date were the record date for the special meeting.
Nothing contained in this Paragraph 2(f) shall in any way be construed to
suggest or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any demand, whether during or after such
five Business Day period, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto).
(g) For
purposes of these Bylaws, “Business Day” shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of
Colorado are authorized or obligated by law or executive order to
close.”
Resolved,
that Article II of the Bylaws is hereby amended through the addition of the
following new Paragraph 12:
“12. Notice
of Stockholder Business and Nomination of Directors.
(a) Annual Meetings.
(i)
Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders may be made at
an annual meeting (A) pursuant to the Corporation’s notice of meeting,
(B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Paragraph 12 of Article II and who is
entitled to vote at the meeting and complies with the notice procedures set
forth in this Paragraph 12 of Article II. The preceding clause
(C) shall be the exclusive means for a stockholder to make nominations or
submit other business (other than matters properly brought under Rule 14a-8
under the Exchange Act, and included in the Corporation’s notice of meeting)
before an annual meeting.
(ii) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to Paragraph 12(a)(i)(C) of Article II, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder’s notice shall be received by
the Secretary of the Corporation at the principal offices of the Corporation not
less than the ninetieth (90th) day
nor more than the one hundred twentieth (120th) day
prior to the first annual anniversary of the date set forth in the Corporation’s
proxy statement for the immediately preceding annual meeting as the date on
which the Corporation first mailed definitive proxy materials for the
immediately preceding annual meeting (the “Anniversary Date”); provided,
however, that if the date for which the annual meeting is called is advanced by
more than 30 days or delayed by more than 30 days from the first annual
anniversary of the immediately preceding annual meeting, then notice by the
stockholder to be timely must be received by the Secretary not earlier than the
close of business on the one hundred twentieth (120th) day
prior to the date of such annual meeting and not later than the later of
(A) the ninetieth (90th) day
prior to the date of such annual meeting or (B) the 10th day following the
day on which public announcement of the date of such annual meeting is first
made. In no event shall the announcement of an adjournment or postponement of an
annual meeting commence a new time period for the giving of a stockholder notice
as described above. Such stockholder’s notice shall be signed by the stockholder
of record who intends to make the nomination or introduce the other business and
by the beneficial owner or owners, if any, on whose behalf the stockholder is
acting, shall bear the date of signature of such stockholder and any such
beneficial owner and shall set forth: (I) the name and address, as they
appear on this Corporation’s books, of such stockholder and any such beneficial
owner; (II) the Share Information (as described below) relating to each such
stockholder and beneficial owner (which Share Information shall be supplemented
by such stockholder and any such beneficial owner not later than ten days after
the meeting record date to disclose such Share Information as of the meeting
record date); (III) a representation that such stockholder is a holder of record
of shares of the Corporation entitled to vote at such meeting and intends to
appear in person or by Proxy at the meeting to make the nomination or introduce
the other business specified in the notice; (IV) any other information relating
to such stockholder and any such beneficial owner that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; (V) in the case of any proposed nomination for election or
re-election as a director, (1) the name and residence address of the person
or persons to be nominated, (2) a description of all agreements,
arrangements or understandings between such
- 3 -
stockholder
and any such beneficial owner and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination is to be made
by such stockholder and any such beneficial owner, including without limitation
any agreement, arrangement or understanding
with any person as to how such nominee, if elected as a director of the
Corporation, will act or vote on any issue or question, (3) a description
of all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years and any other
material relationships, between or among such stockholder and any such
beneficial owner and their respective Affiliates and associates, or others
acting in concert therewith, on the one hand, and each proposed nominee, and his
or her respective Affiliates and associates or others acting in concert
therewith, on the other hand, including, without limitation, all information
that would be required to be disclosed pursuant to Item 404 of Regulation S-K
under the Securities Act of 1933, as amended (the ‘Securities Act”), if the
stockholder making the nomination and any beneficial owner on whose behalf the
nomination is made, or any Affiliate or associate thereof or person acting in
concert therewith, were the “registrant” for purposes of such rule and the
nominee were a director or executive officer of such registrant, (4) such
other information regarding each nominee proposed by such stockholder and any
such beneficial owner as would be required to be disclosed in contested
solicitations of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A under the
Exchange Act and (5) the written consent of each nominee to be named in a
proxy statement and to serve as a director of the Corporation if so elected;
(VI) in the case of any proposed removal of a director, (1) the names of
the directors to be removed and (2) the reasons of such stockholder and any
such beneficial owner for asserting that such directors may be removed for
cause; and (VII) in the case of any other business that such stockholder and any
such beneficial owner propose to bring before the meeting, (1) a brief
description of the business desired to be brought before the meeting and, if
such business includes a proposal to amend these Bylaws, the language of the
proposed amendment, (2) the reasons of such stockholder and any such
beneficial owner for conducting such business at the meeting, (3) any
material interest in such business of such stockholder and any such beneficial
owner and (4) a description of all agreements, arrangements or
understandings between such stockholder and any such beneficial owner and any
other person or persons (naming such person or persons) in connection with the
proposal of such business by such stockholder. In the case of any proposed
nomination for election or re-election as a director, the Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as an independent director of the Corporation or that could be
material to a reasonable stockholder’s understanding of the independence, or
lack thereof, of such nominee.
For
purposes of these Bylaws, the term “Share Information” shall mean (1) the
class or series and number of shares of the Corporation that are owned, directly
or indirectly, of record and/or beneficially by a stockholder, any beneficial
owner on whose behalf the stockholder is acting and any of their respective
Affiliates, (2) any option, warrant, convertible security, stock
appreciation right or similar right with an exercise or conversion privilege or
a settlement payment or mechanism at a price related to any class or series of
shares of the Corporation or with a value derived in whole or in part from the
value of any class of stock or series thereof, whether or not such instrument or
right shall be subject to settlement in the underlying class of stock or series
thereof or otherwise (a “Derivative Instrument”) directly or indirectly owned
beneficially by such stockholder, any such beneficial owner and any of their
respective Affiliates, and any other direct or indirect opportunity to profit or
share in any profit derived from any increase or decrease in the value of shares
of the Corporation, (3) any Proxy, agreement, arrangement, understanding,
or relationship pursuant to which such stockholder has a right to vote any
shares of any security of the Corporation, (4) any short interest in any
security of the Corporation (for purposes of these Bylaws, a person shall be
deemed to have a short interest in a security if such person directly or
indirectly, through any agreement, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security), (5) any rights to dividends
on the shares of the Corporation owned beneficially by such stockholder that are
separated or separable from the underlying shares of the Corporation,
(6) any proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited partnership in
which such stockholder or beneficial owner is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner and (7) any
performance-related fees (other than asset-based fee) that such stockholder, any
such beneficial owner and any of their respective Affiliates are entitled to
based on any increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, as of the date of such notice, including without
limitation any such interests held by members of such person’s immediate family
sharing the same household.
- 4 -
(iii)
Notwithstanding anything in the second sentence of Paragraph 12(a)(ii) of
Article II to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least ninety
(90) days prior to the Anniversary Date, a stockholder’s notice required by this
Paragraph 12 of Article II shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be received by the Secretary at the principal offices of the Corporation not
later than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
(b)
Special Meetings. Only such business shall be conducted at a special meeting as
shall have been described in the notice of meeting sent to stockholders pursuant
to Paragraph 2 of Article II. Nominations of persons for election to the
Board of Directors may be made at a special meeting at which directors are to be
elected pursuant to such notice of meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the Corporation who
(A) is a stockholder of record at the time of giving of such notice of
meeting, (B) is entitled to vote at the meeting and (C) complies with the
notice procedures set forth in this Paragraph 12 of Article II. Any
stockholder desiring to nominate persons for election to the Board of Directors
at such a special meeting shall cause a written notice to be received by the
Secretary of the Corporation at the principal offices of the Corporation not
earlier than the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of (I) the ninetieth (90th) day
prior to such special meeting and (II) the 10th day following the day on which
public announcement is first made of the date of such special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. Such
written notice shall be signed by the stockholder of record who intends to make
the nomination and by the beneficial owner or owners, if any, on whose behalf
the stockholder is acting, shall bear the date of signature of such stockholder
and any such beneficial owner and shall set forth: (1) the name and
address, as they appear on the Corporation’s books, of such stockholder and any
such beneficial owner; (2) the Share Information
relating to each such stockholder and beneficial owner (which Share Information
shall be supplemented by such stockholder and any such beneficial owner not
later than ten days after the meeting record date to disclose such Share
Information as of the meeting record date); (3) a representation that such
stockholder is a holder of record of shares of the Corporation entitled to vote
at such meeting and intends to appear in person or by Proxy at the meeting to
make the nomination specified in the notice; (4) any other information
relating to such stockholder and any such beneficial owner that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in a contested election pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; (5) the name and residence address of the person or persons to
be nominated; (6) a description of all agreements, arrangements or
understandings between such stockholder and any such beneficial owner and each
nominee and any other person or persons (naming such person or persons) pursuant
to which the nomination is to be made by such stockholder and any such
beneficial owner, including without limitation any agreement, arrangement or
understanding with any person as to how such nominee, if elected as a director
of the Corporation, will act or vote on any issue or question; (7) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years and any
other material relationships, between or among such stockholder and any such
beneficial owner and their respective Affiliates and associates, or others
acting in concert therewith, on the one hand, and each proposed nominee, and his
or her respective Affiliates and associates or others acting in concert
therewith, on the other hand, including, without limitation, all information
that would be required to be disclosed pursuant to Item 404 of Regulation S-K
under the Securities Act if the stockholder making the nomination and any
beneficial owner on whose behalf the nomination is made, or any Affiliate or
associate thereof or person acting in concert therewith, were the “registrant”
for purposes of such rule and the nominee were a director or executive officer
of such registrant; (8) such other information regarding each nominee
proposed by such stockholder and any such beneficial owner as would be required
to be disclosed in contested solicitations of proxies for elections of
directors, or would be otherwise required to be disclosed, in each case pursuant
to Regulation 14A under the Exchange Act; and (9) the written consent of
each nominee to be named in a proxy statement and to serve as a director of the
Corporation if so elected. In no event shall any adjournment or postponement of
a special meeting commence a new time period for the giving of a stockholder’s
notice as described above.
(c)
General.
(i) Only
persons who are nominated by the Board of Directors or in accordance with the
procedures set forth in this Paragraph 12 of Article II shall be eligible
to serve as directors. Only such business shall be conducted at an annual
meeting or special meeting as shall have been brought before such meeting in
accordance with the procedures set forth in this Paragraph 12 of Article
II. The chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made in accordance with the procedures set forth in this Paragraph 12
of Article II and, if any proposed nomination or business is not in compliance
with this Paragraph 12 of Article II, to declare that such defective
proposal shall be disregarded.
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(ii) For
purposes of this Paragraph 12 of Article II, “public announcement” shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(iii)
Notwithstanding the foregoing provisions of this Paragraph 12 of Article
II, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Paragraph 12 of Article II. Nothing in this
Paragraph 12 of Article II shall be deemed to limit the Corporation’s
obligation to include stockholder proposals in its proxy statement if such
inclusion is required by Rule 14a-8 under the Exchange Act.”
Resolved,
that Article IV of the Bylaws is hereby amended and restated in its entirety as
follows:
“1.
Director Action Without Meeting. Unless the Articles of Incorporation
provide otherwise, action required or permitted by the Colorado Business
Corporation Act to be taken at a Board of Directors meeting or committee meeting
may be taken without a meeting if the action is taken by all members of the
Board or committee. The action shall be evidenced by one or more written
consents describing the action taken, signed by each director and retained by
the Corporation. Action taken hereunder is effective when the last director
signs the consent, unless the consent specifies a different effective date. A
consent signed hereunder has the effect of a unanimous vote taken at a meeting
at which all directors or committee members were present, and may be described
as such in any document.
2.
Stockholder Action Without Meeting.
(a) To be
valid, each expression of consent to corporate action in writing (a “Consent”)
shall be in writing; shall set forth the specific corporate action to be taken
(which corporate action or actions shall be limited to the action or actions set
forth in the written request to set a Consent Record Date (as defined
below) received by the corporation pursuant to Paragraph 3(c) of Article XI);
shall be signed by one or more persons who as of the Consent Record Date are
stockholders of record (or their duly authorized proxies); shall bear the date
of signature of each such stockholder (or their duly authorized proxies); shall
set forth the name and address, as they appear in the Corporation’s books, of
each stockholder signing such Consent and the class and number of shares of the
Corporation that are owned of record by each such stockholder; in the case of a
Person who is not a stockholder of record, shall be accompanied by a Proxy or
proxies evidencing each such Person’s appointment as a Proxy for the applicable
stockholder of record; and shall be sent to the inspectors of elections engaged
by the Corporation pursuant to this Paragraph 2(c) of Article IV in accordance
with the provisions of Paragraph 2(d) of Article IV. Without limiting
the foregoing, no Consent shall be valid unless, within sixty (60) days
after the applicable Consent Record Date fixed pursuant to Paragraph 3(c) of
Article XI, Consents representing the requisite number of shares subject to
valid and unrevoked Consents to express such corporate action are delivered to
the Corporation pursuant to Paragraph 2 of Article IV; provided, however, that
if the Corporation or a Consent Soliciting Stockholder (as defined below)
(whichever is soliciting Consents) has requested a Preliminary Consent Report
(as defined below) that is pending on such 60th day
pursuant to Paragraph 2(e) of Article IV, then such Consents shall be valid if
Consents representing the requisite number of shares subject to valid and
unrevoked Consents to express such corporate action are delivered to the
Corporation pursuant to this Paragraph 2 at such time as such inspectors issue
the Final Consent Report (as defined below) relating to the pending Preliminary
Consent Report pursuant to Paragraph 2(f) of Article IV or Paragraph 2(g) of
Article IV. The Board of Directors shall have the power and authority to make
rules that are not inconsistent with the Colorado Business Corporation Act as to
the validity of Consents and revocations thereof.
(b)
Consents may be revoked at any time prior to the earlier of (i) such time
as the inspectors of elections issue a Final Consent Report pursuant to
Paragraph 2(f) of Article IV or Paragraph 2(g) of Article IV or (ii) sixty
(60) days after the applicable Consent Record Date fixed pursuant to
Paragraph 3(c) of Article XI by written notice delivered to (A) the
Secretary, (B) any Consent Soliciting Stockholder, (C) to a proxy
solicitor or other agent designated by the Corporation or any Consent Soliciting
Stockholder and/or (D) the inspectors of elections engaged by the
Corporation pursuant to Paragraph 2(c) of Article IV.
- 6 -
(c)
Within three (3) Business Days after a Consent Record Date fixed pursuant
to Paragraph 3(c) of Article XI, the Corporation shall (i) engage
regionally or nationally recognized independent inspectors of elections to act
as agent of the Corporation for the purpose of promptly performing a ministerial
review of the validity of Consents and revocations thereof and (ii) provide
notice to each Consent Soliciting Stockholder of the identity of such inspectors
and the manner in which such Consent Soliciting Stockholder may deliver Consents
and revocations thereof to such inspectors pursuant to Paragraph 2(d) of Article
IV. Except as provided in Paragraph 3(c)(ii) of Article XI, the cost of
retaining inspectors of election shall be borne by the Corporation.
(d) The
Corporation, the Consent Soliciting Stockholders and their respective proxy
solicitors or other designated agents shall deliver Consents and revocations
thereof to the inspectors within two (2) Business Days after receipt. As
soon as the inspectors receive Consents and/or revocations thereof, the
inspectors shall review the Consents and revocations thereof and shall maintain
a count of the number of shares subject to valid and unrevoked Consents. The
inspectors shall keep such count confidential and shall not reveal the count to
any Person; provided, however, that, as soon as practicable after a written
request therefor by the Corporation or a Consent Soliciting Stockholder, the
inspectors shall issue a report (a “Consent Report”) to the Corporation and the
Consent Soliciting Stockholders stating: (i) the number of shares subject
to valid Consents; (ii) the number of shares subject to valid revocations
of Consents; (iii) the number of shares subject to valid and unrevoked
Consents; (iv) the number of shares subject to invalid Consents;
(v) the number of shares subject to invalid revocations of Consents;
(vi) whether, based on their count, the requisite number of shares subject
to valid and unrevoked Consents has been obtained to express the corporate
action specified in the Consents; and (vii) the latest date the inspectors
received Consents and revocations thereof that the inspectors reflected in such
report (the “Report Date”).
(e) As
soon as practicable after a written request therefor by the Corporation or a
Consent Soliciting Stockholder (whichever is soliciting Consents), notice of
which request shall be given to the Corporation and any parties opposing the
Solicitation of Consents, if any, which request shall state that the Corporation
or the Consent Soliciting Stockholders, as the case may be, has a good faith
belief that the requisite number of shares subject to valid and unrevoked
Consents to express the corporate action specified in the Consents has been
received in accordance with the Articles of Incorporation and these Bylaws, the
inspectors shall issue and deliver to the Corporation and the Consent Soliciting
Stockholders a preliminary Consent Report (the “Preliminary Consent Report”);
provided, however, that neither the Corporation nor the Consent Soliciting
Stockholders may request a Preliminary Consent Report after the 60th day
after the applicable Consent Record Date fixed pursuant to Paragraph 3(c) of
Article XI. Unless the Corporation and the Consent Soliciting Stockholders shall
agree to a shorter or longer period, the Corporation and the Consent Soliciting
Stockholders shall have two (2) Business Days after receipt of the
Preliminary Consent Report to review the Consents and revocations thereof and to
advise the inspectors and the opposing parties in writing as to whether they
intend to challenge the Preliminary Consent Report.
(f) If no
written notice of an intention to challenge a Preliminary Consent Report is
received within two (2) Business Days after receipt of the Preliminary
Consent Report by the Corporation and the Consent Soliciting Stockholders and
either (i) the date that is two (2) Business Days after such receipt
of such Preliminary Consent Report (the “Cut-Off Date”) is more than sixty
(60) days after the applicable Consent Record Date fixed pursuant to
Paragraph 3(c) of Article XI or (ii) the Cut-Off Date is not more than
sixty (60) days after the applicable Consent Record Date fixed pursuant to
Paragraph 3(c) of Article XI and the requisite number of shares subject to valid
and unrevoked Consents to express the corporate action specified in the Consents
was obtained, then the inspectors shall as promptly as practicable issue to the
Corporation and the Consent Soliciting Stockholders their final Consent Report
(a “Final Consent Report”), which shall contain the information included in the
Preliminary Consent Report, plus all changes in the vote totals as a result of
Consents and revocations thereof received after the Preliminary Consent Report
Report Date to the time of issuance of the Final Consent Report, if such
Consents and revocations thereof are received within sixty (60) days after
the applicable Consent Record Date fixed pursuant to Paragraph 3(c) of Article
XI, and a certification as to whether the requisite number of shares subject to
valid and unrevoked Consents to express the corporate action specified in the
Consents was obtained. If the Cut-Off Date is not more than sixty (60) days
after the applicable Consent Record Date fixed pursuant to Paragraph 3(c) of
Article XI and the requisite number or shares subject to valid and unrevoked
Consents to express the corporate action specified in the Consents was not
obtained, then the inspectors shall as promptly as practicable issue a Consent
Report to the Corporation and the Consent Soliciting Stockholders and a
certification that the requisite number of shares subject to valid and unrevoked
Consents to express the corporate action specified in the Consents was not
obtained, and the corporation or the Consent Soliciting Stockholders (whichever
is soliciting Consents) shall have the right to request again a Preliminary
Consent Report in accordance with the provisions of Paragraph 2(e) of Article
IV.
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(g) If
the Corporation or the Consent Soliciting Stockholders issue written notice to
the inspectors and the Corporation or the Consent Soliciting Stockholders, as
the case may be, of an intention to challenge a Preliminary Consent Report
within two (2) Business Days after receipt of the Preliminary Consent
Report by the Corporation and the Consent Soliciting Stockholders, then a
challenge session shall be scheduled by the inspectors as promptly as
practicable, at which the Corporation and the Consent Soliciting Stockholders
shall have the right to object to the validity of Consents and revocations
thereof. A transcript of the challenge session shall be recorded by a certified
court reporter. Following completion of the challenge session, if either
(i) the date on which the challenge session is completed (the “Completion
Date”) is more than sixty (60) days after the applicable Consent Record
Date fixed pursuant to Paragraph 3(c) of Article XI or (ii) the Completion
Date is not more than sixty (60) days after the applicable Consent Record
Date fixed pursuant to Paragraph 2(c) of Article XI and the requisite number of
shares subject to valid and unrevoked Consents to express the corporate action
specified in the Consents was obtained, then the inspectors shall as promptly as
practicable issue to the Corporation and the Consent Soliciting Stockholders a
Final Consent Report, which shall contain the information included in the
Preliminary Consent Report, plus all changes in the vote totals as a result of
the challenge and, if such Consents and revocations thereof are received within
sixty (60) days after the applicable Consent Record Date fixed pursuant to
Paragraph 3(c) of Article XI, Consents and revocations thereof received after
the Preliminary Consent Report Report Date to the time of issuance of the Final
Consent Report, and a certification as to whether the requisite number of shares
subject to valid and unrevoked Consents to express the corporate action
specified in the Consents was obtained. If the Completion Date is not more than
sixty (60) days after the applicable Consent Record Date fixed pursuant to
Paragraph 3(c) of Article XI and the requisite number of shares subject to valid
and unrevoked Consents to express the corporate action specified in the Consents
was not obtained, then the inspectors shall as promptly as practicable issue a
Consent Report to the Corporation and the Consent Soliciting Stockholders and a
certification that the requisite number of shares subject to valid and unrevoked
Consents to express the corporate action specified in the Consents was not
obtained, and the Corporation or the Consent Soliciting Stockholders (whichever
is soliciting Consents) shall have the right to request again a Preliminary
Consent Report in accordance with the provisions of Paragraph 2(e) of Article
IV.
(h)
Simultaneously with the delivery of any Final Consent Report to the Corporation
pursuant to Paragraph 2(f) of Article IV or Paragraph 2 (g) of Article IV, the
inspectors shall deliver all valid and unrevoked Consents to the Corporation,
which shall constitute delivery of such Consents to the corporation for purposes
of Section 7-107-104 of the Colorado Business Corporation Act and the
Articles of Incorporation. A copy of any Final Consent Report shall be included
in the book in which the proceedings of meetings of stockholders are
recorded.
(i) As to
any Consent, if, prior to the issuance of a Final Consent Report and delivery of
Consents to the Corporation, all Consent Soliciting Stockholders notify the
Corporation and the inspectors in writing that such Consent Soliciting
Stockholders no longer desire to express consent to the corporate actions
specified in the Consents, then the Consents shall be deemed abandoned, and the
inspectors shall not issue a Final Consent Report or deliver such Consents to
the Corporation.”
Resolved,
that Article VIII of the Bylaws is hereby amended and restated in its entirety
as follows:
“Shares
of Stock
1. Regulation. Shares
of stock of the Corporation may be certificated or uncertificated (i.e., book
entry), as provided under the Colorado Business Corporation
Act. Subject to the terms of any contract of the Corporation, the
Board of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of shares of stock, whether
certificated or uncertificated, of the Corporation, including the issuance of
new certificates for lost or destroyed certificates and the appointment of
transfer agents and registrars.
2. Form
of Shares. Shares that are issued in certificated form shall exhibit
the holder's name and number of shares and shall be signed by the President or
Vice President, and by the Treasurer or the Secretary. If the
Corporation has a transfer agent or an assistant transfer agent or a transfer
clerk acting on its behalf and a registrar, the signature of any officer may be
facsimile. Facsimile signatures may be of the officers of the
Corporation designated above who are officers at the time of the issuance of the
certificates or who were such at the time of the printing or engraving of the
certificates whether or not the person has continued to hold that
office. The powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations and/or restrictions thereon shall be
set forth
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in full
or summarized on the face or back of any certificate which the Corporation shall
issue to represent a class or series of stock, provided that, except as provided
to the contrary by the Colorado Business Corporation Act, in lieu of the
foregoing requirements there may be set forth on the certificate a statement
that the Corporation will furnish without charge to each stockholder who so
requests a summary of such powers, designations, preferences and/or rights and
the qualifications, limitations and/or restrictions thereon. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing certain information required by the Colorado Business Corporation Act
to be set forth or stated on certificates or shall send to such registered owner
a statement that the Corporation will furnish such information without charge to
each stockholder upon request.
3.
Record. A record shall be kept of the name of each person or entity
holding the stock of the Corporation. In the event that such shares
have been certificated, the record shall include the number of shares
represented by each certificate, the date of issuance thereof, and, in the case
of cancellation, the date of cancellation. The person or entity in
whose name shares of stock stand on the books of the Corporation shall be deemed
the owner thereof, and thus a holder of record of such shares of stock, for all
purposes as regards the Corporation.
4.
Transfer of Stock. Transfers of shares of the stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized, and, if such shares are
certificated, on the surrender of the certificate or certificates for such
shares properly endorsed.
5.
Transfer Agents and Registrars; Regulations. The Board of Directors may appoint
one or more transfer agents or registers with respect to shares of the stock of
the Corporation. The Board of Directors may make rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation.
6. Lost,
Destroyed or Mutilated Certificates. The holder of any certificate
representing shares of stock of the Corporation shall immediately notify the
Corporation of any loss or destruction of the certificate representing the
same. The Corporation may issue a new certificate in the place of any
certificate previously issued by it, alleged to have been lost or
destroyed. On production of such evidence of loss or destruction as
the Board of Directors in its discretion may require, the owner of the lost or
destroyed certificate, or his legal representatives, to give the Corporation a
bond in such sum as the Board may direct, and with such surety or sureties as
may be satisfactory to the Board to indemnify the Corporation against any
claims, loss, liability or damage it may suffer on account of the issuance of
the new certificate. A new certificate may be issued without
requiring any such evidence or bond when, in the judgment of the Board of
Directors, it is proper to do so.”
Resolved,
that Article XI, Paragraph 3 of the Bylaws is hereby amended and restated in its
entirety as follows:
“3.
Record Date.
(a) The
Board of Directors may fix in advance a date not less than ten days and not more
than sixty days prior to the date of an annual meeting or special meeting as the
record date for the determination of stockholders entitled to notice of, or to
vote at, such meeting (the “Meeting Record Date”). In the case of any Demand
Special Meeting, (i) the Meeting Record Date shall be not later than the
30th day after the Delivery Date and (ii) if the Board of Directors fails
to fix the Meeting Record Date within thirty days after the Delivery Date, then
the close of business on such 30th day shall be the Meeting Record Date. The
stockholders of record on the Meeting Record Date shall be the stockholders
entitled to notice of and to vote at the meeting. When a determination of
stockholders entitled to notice of and to vote at any annual meeting or special
meeting has been made as provided in this Paragraph 3 of Article XI, such
determination shall be applied to any adjournment thereof unless the Board of
Directors fixes a new Meeting Record Date and except as otherwise required by
law. A new Meeting Record Date must be set if a meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
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(b) The
Board of Directors may also fix in advance a date as the record date for the
purpose of determining stockholders entitled to take any other action or
determining stockholders for any other purpose. Such record date shall not be
more than sixty days prior to the date on which the particular action, requiring
such determination of stockholders, is to be taken. If the Board of Directors
does not fix a record date for the determination of stockholders entitled to
receive a share dividend or distribution (other than a distribution involving a
purchase, redemption or other acquisition of the Corporation’s shares), then the
close of business on the day on which the resolution of the Board of Directors
is adopted declaring the dividend or distribution shall be the record
date.
(c) In
order that the Corporation may determine the stockholders entitled to express
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date to determine the stockholders entitled to express consent
to corporate action in writing without a meeting (the “Consent Record Date”).
The Consent Record Date shall not precede the date upon which the resolution
fixing the Consent Record Date is adopted by the Board of Directors, and such
date shall not be more than ten days after the date upon which the resolution
fixing the Consent Record Date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders express consent to
corporate action in writing without a meeting shall, by sending written notice
to the Secretary of the Corporation by hand or by certified registered mail,
return receipt requested, request the Board of Directors to fix a Consent Record
Date. The Board of Directors shall promptly, but in all events within ten days
after the date on which such a request is received, adopt a resolution fixing
the Consent Record Date and shall make a public announcement of such Consent
Record Date. If no Consent Record Date has been fixed by the Board of Directors
within ten days after the date on which such a request is received by the
Secretary, then the Consent Record Date shall be the 10th day after the first
date on which a valid written request to set a Consent Record Date is received
by the Secretary. To be valid, such written request shall comply with each of
the following:
(i) Such
written request shall be signed by one or more stockholders of record and by the
beneficial owners or owners, if any, on whose behalf the stockholder or
stockholders are acting, shall bear the date of signature of each such
stockholder and any such beneficial owner and shall set forth: (A) the name
and address, as they appear on this corporation’s books, of each such
stockholder and any such beneficial owner who seeks to have the stockholders
express consent to corporate action in writing without a meeting; (B) the
Share Information relating to each such stockholder and beneficial owner;
(C) a representation that each such stockholder is a holder of record of
shares of the Corporation entitled to vote at a meeting of stockholders;
(D) any other information relating to such stockholder and any such
beneficial owner that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; (E) the manner in which each such
stockholder and any such beneficial owner intend to comply with Regulation 14A
under the Exchange Act in seeking to have the stockholders express consent to
corporate action in writing without a meeting; (F) in the case of any such
stockholder and any such beneficial owner seeking to elect or re-elect a
director by the stockholders expressing consent to corporate action in writing
without a meeting, (1) the name and residence address of the person or
persons each such stockholder and any such beneficial owner are seeking to elect
or re-elect as a director, (2) a description of all agreements,
arrangements or understandings between each such stockholder and any such
beneficial owner and each person such stockholder and any such beneficial owner
are seeking to elect or re-elect as a director and any other person or persons
(naming such person or persons) pursuant to which such stockholder and any such
beneficial owner are seeking to elect or re-elect such person as a director,
including without limitation any agreement, arrangement or understanding with
any person as to how each person such stockholder and beneficial owner are
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seeking
to elect or re-elect as a director, if elected as a director of the corporation,
will act or vote on any issue or question, (3) a description of all direct
and indirect compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other material
relationships, between or among such stockholder and any such beneficial owner
and their respective Affiliates and associates, or others acting in concert
therewith, on the one hand, and each person such stockholder and beneficial
owner are seeking to elect or re-elect as a director, and his or her respective
Affiliates and associates, or others acting in concert therewith, on the other
hand, including, without limitation, all information that would be required to
be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act if
such stockholder and beneficial owner, or any Affiliate or associate thereof or
person acting in concert therewith, were the “registrant” for purposes of such
rule and each person such stockholder and beneficial owner are seeking to elect
or re-elect as a director were a director or executive officer of such
registrant, (4) such other information regarding each person such
stockholder and beneficial owner are seeking to elect or re-elect as a director
as would be required to be disclosed in contested solicitations of proxies for
elections of directors, or would be otherwise required to be disclosed, in each
case pursuant to Regulation 14A under the Exchange Act, and (5) the written
consent of each such person to serve as a director of the Corporation if so
elected; (G) in the case of any such stockholder and any such beneficial
owner seeking to remove a director by the stockholders expressing consent to
corporate action in writing without a meeting, (1) the names of the
director(s) each such stockholder and any such beneficial owner are seeking to
remove and (2) the reasons of each such stockholder and any such beneficial
owner for asserting that such director(s) may be removed for cause; and
(H) in the case of any such stockholder and any such beneficial owner
seeking to authorize or take any other corporate action by the stockholders
expressing consent to corporate action in writing without a meeting, (1) a
brief description of the corporate action desired to be authorized or taken and,
if such corporate action includes an amendment to these Bylaws, the language of
the proposed amendment, (2) the reasons of each such stockholder and any
such beneficial owner for authorizing or taking such corporate action,
(3) any material interest in such corporate action of each such stockholder
and any such beneficial owner and (4) a description of all agreements,
arrangements or understandings between such stockholder and any such beneficial
owner and any other person or persons (naming such person or persons) in
connection with the proposal of such business by such stockholder. In the case
of any such stockholder and any such beneficial owner seeking to elect or
re-elect a director by the stockholders expressing consent to corporate action
in writing without a meeting, the Corporation may require any person such
stockholder and any such beneficial owner are seeking to elect or re-elect as a
director to furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such person to serve as an
independent director of the Corporation or that could be material to a
reasonable stockholder’s understanding of the independence, or lack thereof, of
such person.
(ii) Such
written request shall be accompanied by a written agreement signed by each
Consent Soliciting Stockholder (as defined below) pursuant to which each Consent
Soliciting Stockholder, jointly and severally, agrees to pay the Corporation’s
costs relating to such Consent Soliciting Stockholder seeking to have the
stockholders express consent to corporate action in writing without a meeting,
including the costs of preparing and mailing proxy materials for the
corporation’s own solicitation, provided that if the Consent Soliciting
Stockholder obtains the requisite number of shares subject to valid and
unrevoked Consents (as defined in Paragraph 2(c) of Article IV) to express the
corporate action referred to therein in accordance with these Bylaws, then the
Consent Soliciting Stockholders shall not be required to pay such costs. For
purposes of these Bylaws, “Consent Soliciting Stockholder” shall mean each of
the following Persons:
(A) if
the number of stockholders signing the Consent or Consents is ten or fewer, each
Person signing any such Consents; or
(B) if
the number of stockholders signing the Consent or Consents is more than ten,
each Person who either (1) was a Participant in any Solicitation of such
consent or consents or (2) at the time of the delivery to the corporation
of the documents described in this Paragraph 3(c) had engaged or intends to
engage in any Solicitation of Consents and/or Proxies for expressing consent to
corporate action in writing without a meeting (other than a Solicitation of
Consents and/or Proxies on behalf of the corporation).
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A
“Consent Soliciting Stockholder” shall also mean each Affiliate of a Consent
Soliciting Stockholder described in clause (A) or (B) above who is a
member of such Consent Soliciting Stockholder’s “group” for purposes of Rule
13d-5(b) under the Exchange Act, and any other Affiliate of such a Consent
Soliciting Stockholder, if a majority of the directors then in office determine,
reasonably and in good faith, that such Affiliate should be required to sign the
written notice described in Paragraph 3(c)(i) and/or the written agreements
described in this Paragraph 3(c)(ii) and Paragraph 3(c)(iii) to prevent the
purposes of this Paragraph 3 (c) and Paragraph 2(c) of Article IV from being
evaded.
(iii)
Such written request shall be accompanied by a written agreement signed by each
Consent Soliciting Stockholder pursuant to which each Consent Soliciting
Stockholder agrees to deliver to any inspectors of election engaged by the
corporation pursuant to Paragraph 2(c) of Article IV within two
(2) Business Days after receipt all Consents and revocations thereof
received by such Consent Soliciting Stockholder or such Consent Soliciting
Stockholder’s proxy solicitor or other designated agent in connection with such
Consent Soliciting Stockholder seeking to have the stockholders express written
consent.”
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