Attached files
Exhibit 2.6
BYLAWS OF
AMBICOM ACQUISITION CORP.
ARTICLE
I
OFFICES
The
principal office of the corporation shall be designated from time to time by the
corporation and may be within or outside of Nevada.
The
corporation may have such other offices, either within or outside Nevada, as the
board of directors may designate or as the business of the corporation may
require from time to time.
The
registered office of the corporation required by the General Corporation Law of
Nevada to be maintained in Nevada may be, but need not be, identical with the
principal office, and the address of the registered office may be changed from
time to time by the board of directors.
ARTICLE
II
SHAREHOLDERS
Section
1. ANNUAL MEETING. The annual meeting of the shareholders shall be held on a
date and at a time fixed by the board of directors of the corporation (or by the
president in the absence of action by the board of directors), beginning with
the year 2009, for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the election of directors
is not held on the day fixed as provided herein for any annual meeting of the
shareholders, or any adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as it may conveniently be held.
A
shareholder may apply to the district court in the county in Nevada where the
corporation's principal office is located or, if the corporation has no
principal office in Nevada, to the district court of the county in which the
corporation's registered office is located to seek an order that a shareholder
meeting be held (i) if an annual meeting was not held within six months after
the close of the corporation's most recently ended fiscal year or fifteen months
after its last annual meeting, whichever is earlier, or (ii) if the shareholder
participated in a proper call of or proper demand for a special meeting and
notice of the special meeting was not given within thirty days after the date of
the call or the date the last of the demands necessary to require calling of the
meeting was received by the corporation pursuant to the General Corporation Law
of Nevada, or the special meeting was not held in accordance with the
notice.
Section
2. SPECIAL MEETINGS. Unless otherwise prescribed by statute, special meetings of
the shareholders may be called for any purpose by the Chairman or by the board
of directors. The Chairman shall call a special meeting of the shareholders if
the corporation receives one or more written demands for the meeting, stating
the purpose or purposes for which it is to be held, signed and dated by holders
of shares representing at least ten percent of all the votes entitled to be cast
on any issue proposed to be considered at the meeting.
Section
3. PLACE OF MEETING. The board of directors may designate any place, either
within or outside Nevada, as the place for any annual meeting or any special
meeting called by the board of directors. A waiver of notice signed by all
shareholders entitled to vote at a meeting may designate any place, either
within or outside Nevada, as the place for such meeting. If no designation is
made, or if a special meeting is called other than by the board, the place of
meeting shall be the principal office of the corporation.
Section 4. NOTICE OF MEETING. Written
notice stating the place, date, and hour of the meeting shall be given not less
than ten nor more than sixty days before the date of the meeting, except if any other longer period is
required by the General Corporation Law of Nevada. The secretary shall be required to give
such notice only to shareholders entitled to vote at the meeting except as otherwise required by the
General Corporation Law of Nevada.
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Notice of
a special meeting shall include a description of the purpose or purposes of the
meeting. Notice of an annual meeting need not include a description of the
purpose or purposes of the meeting except the purpose or purposes shall be
stated with respect to (i) an amendment to the articles of incorporation of the
corporation, (ii) a merger or share exchange in which the corporation is a party
and, with respect to a share exchange, in which the corporation's shares will be
acquired, (iii) a sale, lease, exchange or other disposition, other than in the
usual and regular course of business, of all or substantially all of the
property of the corporation or of another entity which this corporation
controls, in each case with or without the goodwill, (iv) a dissolution of the
corporation, (v) restatement of the articles of incorporation, or (vi) any other
purpose for which a statement of purpose is required by the General Corporation
Law of Nevada. Notice shall be given personally or by mail, private carrier,
electronically transmitted facsimile or other form of wire or wireless
communication by or at the direction of the president, the secretary, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed and if in a comprehensible form, such notice
shall be deemed to be given and effective when deposited in the United States
mail, properly addressed to the shareholder at his address as it appears in the
corporation's current record of shareholders, with first class postage prepaid.
If notice is given other than by mail, and provided that such notice is in a
comprehensible form, the notice is given and to be effective when
sent.
If
requested by the person or persons lawfully calling such meeting, the secretary
shall give notice thereof at corporate expense. No notice need be sent to any
shareholder if three successive notices mailed to the last known address of such
shareholder have been returned as undeliverable until such time as another
address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and
records.
When a
meeting is adjourned to another date, time or place, notice need not be given of
the new date, time or place if the new date, time or place of such meeting is
announced before adjournment at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any business which may
have been transacted at the original meeting. If the adjournment is for more
than 120 days, or if a new record date is fixed for the adjourned meeting, a new
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting as of the new record date.
A
shareholder may waive notice of a meeting before or after the time and date of
the meeting by a writing signed by such shareholder. Such waiver shall be
delivered to the corporation for filing with the corporate records, but this
delivery and filing shall not be conditions to the effectiveness of the waiver.
Further, by attending a meeting either in person or by proxy, a shareholder
waives objection to lack of notice or defective notice of the meeting unless the
shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the shareholder also waives any
objection to consideration at the meeting of a particular matter not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
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Section
5. FIXING OF RECORD DATE. For the purpose of determining shareholders entitled
to (i) notice of or vote at any meeting of shareholders or any adjournment
thereof, (ii) receive distributions or share dividends, (iii) demand a special
meeting, or (iv) make a determination of shareholders for any other proper
purpose, the board of directors may fix a future date as the record date for any
such determination of shareholders, such date in any case to be not more than
seventy days, and, in case of a meeting of shareholders, not less than ten days,
prior to the date on which the particular action requiring such determination of
shareholders is to be taken. If no record date is fixed by the directors, the
record date shall be the day before the notice of the meeting is given to
shareholders, or the date on which the resolution of the board of . directors
providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record date, which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting. Unless otherwise specified when the record
date is fixed, the time of day for such determination shall be as of the
corporation's close of business on the record date.
Notwithstanding
the above, the record date for determining the shareholders entitled to take
action without a meeting or entitled to be given notice of action so taken shall
be the date a writing upon which the action is taken is first received by the
corporation. The record date for determining shareholders entitled to demand a
special meeting shall be the date of the earliest of any of the demands pursuant
to which the meeting is called.
Section
6. VOTING LISTS. After a record date is fixed for a shareholders' meeting, the
secretary shall make, at the earlier often days before such meeting or two
business days after notice of the meeting has been given, a complete list of the
shareholders entitled to be given notice of such meeting or any adjournment
thereof. The list shall be arranged by voting groups and within each voting
group by class or series of shares, shall be in alphabetical order within each
class or series, and shall show the address of and the number of shares of each
class or series held by each shareholder. For the period beginning the earlier
often days prior to the meeting or two business days after notice of the meeting
is given and continuing through the meeting and any adjournment thereof, this
list shall be kept on file at the principal office of the corporation, or at a
place (which shall be identified in the notice) in the city where the meeting
will be held. Such list shall be available for inspection on written demand by
any shareholder (including for the purpose of this Section 6 any holder of
voting trust certificates) or his agent or attorney during regular business
hours and during the period available for inspection. The original share
transfer books shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any meeting of
shareholders.
Any
shareholder, his agent or attorney may copy the list during regular business
hours and during the period it is available for inspection, provided (i) the
shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose, and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
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Section
7. RECOGNITION PROCEDURE FOR BENEFICIAL OWNERS. The board of directors may adopt
by resolution a procedure whereby a shareholder of the corporation may certify
in writing to the corporation that all or a portion of the shares registered in
the name of such shareholder are held for the account of a specified person or
persons. The resolution may set forth (i) the types of nominees to which it
applies, (ii) the rights or privileges that the corporation will recognize in a
beneficial owner, which may include rights and privileges other than voting,
(iii) the form of certification and the information to be contained therein,
(iv) if the certification is with respect to a record date, the time within
which the certification must be received by the corporation, (v) the period for
which the nominee's use of the procedure is effective, and (vi) such other
provisions with respect to the procedure as the board deems necessary or
desirable. Upon receipt by the corporation of a certificate complying with the
procedure established by the board of directors, the persons specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
Section
8. QUORUM AND MANNER OF ACTING. A majority of the votes entitled to be cast on a
matter by a voting group represented in person or by proxy, shall constitute a
quorum of that voting group for action on the matter. If less than a majority of
such votes are represented at a meeting, a majority of the votes so represented
may adjourn the meeting from time to time without further notice, for a period
not to exceed 120 days for any one adjournment. If a quorum is present at such
adjourned meeting, any business may be transacted which might have been
transacted at the meeting as originally noticed. The shareholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, unless the meeting is adjourned and a new record date is set for the
adjourned meeting.
If a
quorum exists, action on a matter other than the election of directors by a
voting group is approved if the votes cast within the voting group favoring the
action exceed the votes cast within the voting group opposing the action, unless
the vote of a greater number or voting by classes is required by law or the
articles of incorporation.
Section
9. PROXIES. At all meetings of shareholders, a shareholder may vote by proxy by
signing an appointment form or similar writing, either personally or by his duly
authorized attorney-in-fact. A shareholder may also appoint a proxy by
transmitting or authorizing the transmission of a facsimile or other electronic
transmission providing a written statement of the appointment to the proxy, a
proxy solicitor, proxy support service organization, or other person duly
authorized by the proxy to receive appointments as agent for the proxy, or to
the corporation. The transmitted appointment shall set forth or be transmitted
with written evidence from which it can be determined that the shareholder
transmitted or authorized the transmission of the appointment. The proxy
appointment form or similar writing shall be filed with the secretary of the
corporation before or at the time of the meeting. The appointment of a proxy is
effective when received by the corporation and is valid for eleven months unless
a different period is expressly provided in the appointment form or similar
writing.
Any
complete copy, including an electronically transmitted facsimile, of an
appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be
used.
Revocation of a proxy does not affect
the right of the corporation to accept the proxy's authority unless (i) the corporation
had notice that the appointment was coupled with an interest and notice that
such interest is extinguished is received by the secretary or other officer or
agent authorized to
tabulate votes before the proxy exercises his authority under the appointment,
or (ii) other notice of
the revocation of the appointment is received by the secretary or other officer
or agent authorized to
tabulate votes before the proxy exercises his authority under the appointment. Other notice of revocation
may, in the discretion of the corporation, be deemed to include the appearance
at a shareholders' meeting of the shareholder who granted the proxy and
his voting in person on
any matter subject to a vote at such meeting.
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The death
or incapacity of the shareholder appointing a proxy does not affect the right of
the corporation to accept the proxy's authority unless notice of the death or
incapacity is received by the secretary or other officer or agent authorized to
tabulate votes before the proxy exercises his authority under the
appointment.
The
corporation shall not be required to recognize an appointment made irrevocable
if it has received a writing revoking the appointment signed by the shareholder
(including a shareholder who is a successor to the shareholder who granted the
proxy) either personally or by his attorney-in-fact, notwithstanding that the
revocation may be a breach of an obligation of the shareholder to another person
not to revoke the appointment.
Subject
to Section 11 and any express limitation on the proxy's authority appearing on
the appointment form, the corporation is entitled to accept the proxy's vote or
other action as that of the shareholder making the appointment.
Section
10. VOTING OF SHARES. Each outstanding share, regardless of class, shall be
entitled to one vote, except in the election of directors, and each fractional
share shall be entitled to a corresponding fractional vote on each matter
submitted to a vote at a meeting of shareholders, except to the extent that the
voting rights of the shares of any class or classes are limited or denied by the
articles of incorporation as permitted by the General Corporation Law of Nevada.
Cumulative voting shall not be permitted in the election of directors or for any
other purpose. Each record holder of shares shall be entitled to vote in the
election of directors and shall have as many votes for each of the shares owned
by him as there are directors to be elected and for whose election he has the
right to vote.
At each
election of directors, that number of candidates equaling the number of
directors to be elected, having the highest number of votes cast in favor of
their election, shall be elected to the board of directors.
Except as
otherwise ordered by a court of competent jurisdiction upon a finding that the
purpose of this Section would not be violated in the circumstances presented to
the court, the shares of the corporation are not entitled to be voted if they
are owned, directly or indirectly, by a second corporation, domestic or foreign,
and the first corporation owns, directly or indirectly, a majority of the shares
entitled to vote for directors of the second corporation except to the extent
the second corporation holds the shares in a fiduciary capacity.
Redeemable
shares are not entitled to be voted after notice of redemption is mailed to the
holders and a sum sufficient to redeem the shares has been deposited with a
bank, trust company or other financial institution under an irrevocable
obligation to pay the holders the redemption price on surrender of the
shares.
Section 11. CORPORATION'S ACCEPTANCE OF
VOTES. If the name signed on a vote, consent, waiver, proxy appointment, or
proxy appointment revocation corresponds to the name of a shareholder, the corporation, if
acting in good faith, is entitled to accept the vote, consent, waiver, proxy
appointment or proxy appointment revocation and give it effect as the act of the
shareholder. If the name
signed on a vote, consent, waiver, proxy appointment or proxy appointment
revocation does not correspond to the name of a shareholder, the corporation,
if acting in good faith,
is nevertheless entitled to accept the vote, consent, waiver, proxy appointment or proxy appointment
revocation and to give it effect as the act of the shareholder
if:
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(i) the
shareholder is an entity and the name signed purports to be that of an officer
or agent of the entity;
(ii) the
name signed purports to be that of an administrator, executor, guardian or
conservator representing the shareholder and, if the corporation requests,
evidence of fiduciary status acceptable to the corporation has been presented
with respect to the vote, consent, waiver, proxy appointment or proxy
appointment revocation;
(iii) the
name signed purports to be that of a receiver or trustee in bankruptcy of the
shareholder and, if the corporation requests, evidence of this status acceptable
to the corporation has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
(iv) the
name signed purports to be that of a pledgee, beneficial owner or
attorney-in-fact of the shareholder and, if the corporation requests, evidence
acceptable to the corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote, consent, waiver, proxy
appointment or proxy appointment revocation;
(v) two
or more persons are the shareholder as co-tenants or fiduciaries and the name
signed purports to be the name of at least one of the co-tenants or fiduciaries,
and the person signing appears to be acting on behalf of all the co-tenants or
fiduciaries; or
(vi) the
acceptance of the vote, consent, waiver, proxy appointment or proxy appointment
revocation is otherwise proper under rules established by the corporation that
are not inconsistent with this Section 11.
The
corporation is entitled to reject a vote, consent, waiver, proxy appointment or
proxy appointment revocation if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
Neither
the corporation nor its officers nor any agent who accepts or rejects a vote,
consent, waiver, proxy appointment or proxy appointment revocation in good faith
and in accordance with the standards of this Section is liable in damages for
the consequences of the acceptance or rejection.
Section
12. INFORMAL ACTION BY SHAREHOLDERS. Any action required or permitted to be
taken at a meeting of the shareholders may be taken without a meeting if a
written consent (or counterparts thereof) that sets forth the action so taken is
signed by shareholders holding at least that proportion of the voting power
necessary to approve such action and received by the corporation. Such consent
shall have the same force and effect as a vote of the shareholders and may be
stated as such in any document. Action taken under this Section 12 is effective
as of the date the last writing necessary to effect the action is received by
the corporation, unless all of the writings specify a different effective date,
in which case such specified date shall be the effective date for such action.
The record date for determining shareholders entitled to take action without a
meeting is the date the corporation first receives a writing upon which the
action is taken.
Any
shareholder who has signed a writing describing and consenting to action taken
pursuant to this Section 12 may revoke such consent by a writing signed by the
shareholder describing the action and stating that the shareholder's prior
consent thereto is revoked, if such writing is received by the corporation
before the effectiveness of the action.
Section 13. MEETINGS BY
TELECOMMUNICATION. Any or all of the shareholders may participate in an annual or special
shareholders' meeting by, or the meeting may be conducted through the use of any means of
communication by which all persons participating in the meeting may hear each other during the
meeting. A shareholder participating in a meeting by this means is deemed to be present in person
at the meeting.
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ARTICLE
III
BOARD OF
DIRECTORS
Section
1. GENERAL POWERS. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of, its board of directors, except as otherwise provided in
the General Corporation Law of Nevada or the articles of
incorporation.
Section
2. NUMBER, QUALIFICATIONS AND TENURE. The number of directors of the corporation
may be fixed from time to time by the board of directors, within a range of no
less than one or more than fifteen, but no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director. A
director shall be a natural person who is eighteen years of age or older. A
director need not be a resident of Nevada or a shareholder of the
corporation.
Directors
shall be elected at each annual meeting of shareholders. Each director shall
hold office until the next annual meeting of shareholders following his election
and thereafter until his successor shall have been elected and qualified.
Directors shall be removed in the manner provided by the General Corporation Law
of Nevada. Any director may be removed by the shareholders of the voting group
that elected the director, with cause, at a meeting called for that purpose. The
notice of the meeting shall state that the purpose or one of the purposes of the
meeting is removal of the director. A director may be removed only if the number
of votes cast in favor of removal exceeds the number of votes cast against
removal.
Section
3. VACANCIES. Any director may resign at any time by giving written notice to
the secretary. Such resignation shall take effect at the time the notice is
received by the secretary unless the notice specifies a later effective date.
Unless otherwise specified in the notice of resignation, the corporation's
acceptance of such resignation shall not be necessary to make it effective. Any
vacancy on the board of directors may be filled by the affirmative vote of a
majority of the shareholders at a special meeting called for that purpose or by
the board of directors. If the directors remaining in office constitute fewer
than a quorum of the board, the directors may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office. If
elected by the directors, the director shall hold office until the next annual
shareholders' meeting at which directors are elected. If elected by the
shareholders, the director shall hold office for the unexpired term of his
predecessor in office; except that, if the director's predecessor was elected by
the directors to fill a vacancy, the director elected by the shareholders shall
hold office for the unexpired term of the last predecessor elected by the
shareholders.
Section
4. REGULAR MEETINGS. A regular meeting of the board of directors shall be held
without notice immediately after and at the same place as the annual meeting of
shareholders. The board of directors may provide by resolution the time and
place, either within or outside Nevada, for the holding of additional regular
meetings without other notice.
Section
5. SPECIAL MEETINGS. Special meetings of the board of directors may be called by
or at the request of the president or any one of the directors. The person or
persons authorized to call special meetings of the board of directors may fix
any place, either within or outside Nevada, as the place for holding any special
meeting of the board of directors called by them.
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Section
6. NOTICE. Notice of the date, time and place of any special meeting shall be
given to each director at least two days prior to the meeting by written notice
either personally delivered or mailed to each director at his business address,
or by notice transmitted by private courier, electronically transmitted
facsimile or other form of wire or wireless communication. If mailed, such
notice shall be deemed to be given and to be effective when deposited in the
United States mail, properly addressed, with first class postage prepaid. If
notice is given by electronically transmitted facsimile or other similar form of
wire or wireless communication, such notice shall be deemed to be given and to
be effective when sent. If a director has designated in writing one or more
reasonable addresses or facsimile numbers for delivery of notice to him, notice
sent by mail, electronically transmitted facsimile or other form of wire or
wireless communication shall not be deemed to have been given or to be effective
unless sent to such addresses or facsimile numbers, as the case may
be.
A
director may waive notice of a meeting before or after the time and date of the
meeting by a writing signed by such director. Such waiver shall be delivered to
the secretary for filing with the corporate records, but such delivery and
filing shall not be conditions to the effectiveness of the waiver. Further, a
director's attendance at or participation in a meeting waives any required
notice to him of the meeting unless at the beginning of the meeting, or promptly
upon his later arrival, the director objects to holding the meeting or
transacting business at the meeting because of lack of notice or defective
notice and does not thereafter vote for or assent to action taken at the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
Section
7. QUORUM. A majority of the number of directors fixed by the board of directors
pursuant to Article III, Section 2 or, if no number is fixed, a majority of the
number in office immediately before the meeting begins, shall constitute a
quorum for the transaction of business at any meeting of the board of
directors.
Section
8. MANNER OF ACTING. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of
directors.
Section
9. COMPENSATION. By resolution of the board of directors, any director may be
paid any one or more of the following: his expenses, if any, of attendance at
meetings, a fixed sum for attendance at each meeting, a stated salary as
director, or such other compensation as the corporation and the director may
reasonably agree upon. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Section 10. PRESUMPTION OF ASSENT. A director of the corporation who is present
at a meeting of the board of directors or committee of the board at which action
on any corporate matter is taken shall be presumed to have assented to all
action taken at the meeting unless (i) the director objects at the beginning of
the meeting, or promptly upon his arrival, to the holding of the meeting or the
transaction of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting, (ii) the director contemporaneously
requests that his dissent or abstention as to any specific action taken be
entered in the minutes of the meeting, or (iii) the director causes written
notice of his dissent or abstention as to any specific action to be received by
the presiding officer of the meeting before its adjournment or by the secretary
promptly after the adjournment of the meeting. A director may dissent to a
specific action at a meeting, while assenting to others. The right to dissent to
a specific action taken at a meeting of the board of directors or a committee of
the board shall not be available to a director who voted in favor of such
action.
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Section
11. COMMITTEES. By resolution adopted by a majority of all the directors in
office when the action is taken, the board of directors may designate from among
its members an executive committee and one or more other committees, and appoint
one or more members of the board of directors to serve on them. To the extent
provided in the resolution.
Sections
4, 5, 6, 7, 8 or 12 of Article III, which govern meetings, notice, waiver of
notice, quorum, voting requirements and action without a meeting of the board of
directors, shall apply to committees and their members appointed under this
Section 11.
Neither
the designation of any such committee, the delegation of authority to such
committee, nor any action by such committee pursuant to its authority shall
alone constitute compliance by any member of the board of directors or a member
of the committee in question with his responsibility to conform to the standard
of care set forth in Article III, Section 14 of these bylaws.
Section
12. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be taken
at a meeting of the directors or any committee designated by the board of
directors may be taken without a meeting if a written consent (or counterparts
thereof) that sets forth the action so taken is signed by all of the directors
entitled to vote with respect to the action taken. Such consent shall have the
same force and effect as a unanimous vote of the directors or committee members
and may be stated as such in any document. Unless the consent specifies a
different effective time or date, action taken under this Section 12 is
effective at the time or date the last director signs a writing describing the
action taken, unless, before such time, any director has revoked his consent by
a writing signed by the director and received by the president or the secretary
of the corporation.
Section
13. TELEPHONIC MEETINGS. The board of directors may permit any director (or any
member of a committee designated by the board) to participate in a regular or
special meeting of the board of directors or a committee thereof through the use
of any means of communication by which all directors participating in the
meeting can hear each other during the meeting. A director participating in a
meeting in this manner is deemed to be present in person at the
meeting.
Section
14. STANDARD OF CARE. A director shall perform his duties as a director,
including without limitation his duties as a member of any committee of the
board, in good faith, in a manner he reasonably believes to be in the best
interests of the corporation, and with the care an ordinarily prudent person in
a like position would exercise under similar circumstances. In performing his
duties, a director shall be entitled to rely on information, opinions, reports
or statements, including financial statements and other financial data, in each
case prepared or presented by the persons herein designated. However, he shall
not be considered to be acting in good faith if he has knowledge concerning the
matter in question that would cause such reliance to be unwarranted. A director
shall not be liable to the corporation or its shareholders for any action he
takes or omits to take as a director if, in connection with such action or
omission, he performs his duties in compliance with this Section
14.
The
designated persons on whom a director is entitled to rely are (i) one or more
officers or employees of the corporation whom the director reasonably believes
to be reliable and competent in the matters presented, (ii) legal counsel,
public accountant, or other person as to matters which the director reasonably
believes to be within such person's professional or expert competence, or (iii)
a committee of the board of directors on which the director does not serve if
the director reasonably believes the committee merits
confidence.
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ARTICLE
IV
OFFICERS
AND AGENTS
Section
1. GENERAL. The officers of the corporation shall be a Chairman, a chief
executive officer and/or president, a secretary and a treasurer, and may also
include one or more vice presidents, each of which officer shall be appointed by
the board of directors and shall be a natural person eighteen years of age or
older. One person may hold more than one office. The board of directors or an
officer or officers so authorized by the board may appoint such other officers,
assistant officers, committees and agents, including a chairman of the board,
assistant secretaries and assistant treasurers, as they may consider necessary.
Except as expressly prescribed by these bylaws, the board of directors or the
officer or officers authorized by the board shall from time to time determine
the procedure for the appointment of officers, their authority and duties and
their compensation, provided that the board of directors may change the
authority, duties and compensation of any officer who is not appointed by the
board.
Section
2. APPOINTMENT AND TERM OF OFFICE. The officers of the corporation to be
appointed by the board of directors shall be appointed at each annual meeting of
the board held after each annual meeting of the shareholders. If the appointment
of officers is not made at such meeting or if an officer or officers are to be
appointed by another officer or officers of the corporation, such appointments
shall be made as determined by the board of directors or the appointing person
or persons. Each officer shall hold office until the first of the following
occurs: his successor shall have been duly appointed and qualified, his death,
Ms resignation, or his removal in the manner provided in Section 3.
Section
3. RESIGNATION AND REMOVAL. An officer may resign at any time by giving written
notice of resignation to the president, secretary or other person who appoints
such officer. The resignation is effective when the notice is received by the
corporation unless the notice specifies a later effective date.
Any
officer or agent may be removed at any time with or without cause by the board
of directors or an officer or officers authorized by the board. Such removal
does not affect the contract rights, if any, of the corporation or of the person
so removed. The appointment of an officer or agent shall not in itself create
contract rights.
Section
4. VACANCIES. A vacancy in any office, however occurring, may be filled by the
board of directors, or by the officer or officers authorized by the board, for
the unexpired portion of the officer's term. If an officer resigns and his
resignation is made effective at a later date, the board of directors, or
officer or officers authorized by the board, may permit the officer to remain in
office until the effective date and may fill the pending vacancy before the
effective date if the board of directors or officer or officers authorized by
the board provide that the successor shall not take office until the effective
date. In the alternative, the board of directors, or officer or officers
authorized by the board of directors, may remove the officer at any time before
the effective date and may fill the resulting vacancy.
Section 5. PRESIDENT. The president
shall preside at all meetings of shareholders and all meetings of the board of directors
unless the board of directors has appointed a chairman, vice chairman, or other
officer of the board and has authorized such person to preside at meetings of
the board of directors. Subject to the direction and supervision of the board of
directors, the president
shall be the chief executive officer of the corporation, and shall have general
and active control of its
affairs and business and general supervision of its officers, agents and
employees. Unless otherwise directed by the board of directors, the president
shall attend in person or by substitute appointed by him, or shall execute on
behalf of the corporation written instruments appointing a proxy or proxies to
represent the corporation, at all meetings of the shareholders of any other corporation in which the
corporation holds any shares. On behalf of the corporation, the president may in
person or by substitute or by proxy execute written waivers of notice and
consents with respect to any such meetings. At all such meetings and otherwise,
the president, in person or by substitute or proxy, may vote the shares held by
the corporation, execute written consents and other instruments with respect to
such shares, and exercise any and all rights and powers incident to the
ownership of said shares, subject to the instructions, if any, of the board of
directors. The president shall have custody of the treasurer's bond, if any. The
president shall have such
additional authority and duties as are appropriate and customary for the office
of president and chief
executive officer, except as the same may be expanded or limited by the
board of directors from
time to time.
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Section
6. VICE PRESIDENTS. The vice presidents shall assist the president and shall
perform such duties as may be assigned to them by the president or by the board
of directors. In the absence of the president, the vice president, if any (or,
if more than one, the vice presidents in the order designated by the board of
directors, or if the board makes no such designation, then the vice president
designated by the president, or if neither the board nor the president makes any
such designation, the senior vice president as determined by first election to
that office), shall have the powers and perform the duties of the
president.
Section 7. SECRETARY. The secretary
shall (i) prepare and maintain as permanent records the minutes of the proceedings of the
shareholders and the board of directors, a record of all actions taken by the shareholders or
board of directors without a meeting, a record of all actions taken by a
committee of the board of directors in place of the board of directors on behalf
of the corporation, and a record of all waivers of notice of meetings of
shareholders and of the board of directors or any committee thereof,
(ii) see that all notices are duly given in accordance with the provisions of these bylaws and as
required by law, (iii) serve as custodian of the corporate records and of the seal of the
corporation and affix the seal to all documents when authorized by the board of
directors, (iv) keep at the corporation's registered office or principal place
of business a record containing the names and addresses of all shareholders in a
form that permits preparation of a list of shareholders arranged by voting group
and by class or series of shares within each voting group, that is alphabetical
within each class or series and that shows the address of, and the number of
shares of each class or series held by, each shareholder, unless such a record
shall be kept at the office of the corporation's transfer agent or registrar,
(v) maintain at the corporation's principal office the originals or copies of
the corporation's articles of incorporation, bylaws, minutes of
all shareholders' meetings and records of all action taken by shareholders
without a meeting for the past three years, all written communications within
the past three years to
shareholders as a group or to the holders of any class or series of shares as a
group, a list of the names and business addresses of the current directors and
officers, a copy of the corporation's most recent corporate report filed with
the Secretary of State, and financial statements showing in reasonable detail
the corporation's assets and liabilities and results of operations for the last
three years, (vi) have general charge of the stock transfer books of the
corporation, unless the corporation has a transfer agent, (vii) authenticate
records of the corporation, and (viii) in general, perform all duties incident
to the office of secretary and such other duties as from time to time may be
assigned to him by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers, subject to
supervision by the
secretary. The directors and/or shareholders may however respectively
designate a person other than the
secretary or assistant secretary to keep the minutes of their respective
meetings.
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Any
books, records, or minutes of the corporation may be in written form or in any
form capable of being converted into written form within a reasonable
time.
Section
8. TREASURER. The treasurer shall be the principal financial officer of the
corporation, shall have the care and custody of all funds, securities, evidences
of indebtedness and other personal property of the corporation and shall deposit
the same in accordance with the instructions of the board of directors. Subject
to the limits imposed by the board of directors, he shall receive and give
receipts and acquittances for money paid in on account of the corporation, and
shall pay out of the corporation's funds on hand all bills, payrolls and other
just debts of the corporation of whatever nature upon maturity. He shall perform
all other duties incident to the office of the treasurer and, upon request of
the board, shall make such reports to it as may be required at any time. He
shall, if required by the board, give the corporation a bond in such sums and
with such sureties as shall be satisfactory to the board, conditioned upon the
faithful performance of his duties and for the restoration to the corporation of
all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation. He shall have such
other powers and perform such other duties as may from time to time be
prescribed by the board of directors or the president. The assistant treasurers,
if any, shall have the same powers and duties, subject to the supervision of the
treasurer.
The
treasurer shall also be the principal accounting officer of the corporation. He
shall prescribe and maintain the methods and systems of accounting to be
followed, keep complete books and records of account as required by the General
Corporation Law of Nevada, prepare and file all local, state and federal tax
returns, prescribe and maintain an adequate system of internal audit and prepare
and furnish to the president and the board of directors statements of account
showing the financial position of the corporation and the results of its
operations.
ARTICLE
V
SHARES
Section
1. CERTIFICATES. The board of directors shall be authorized to issue any of its
classes of shares with or without certificates. The fact that the shares are not
represented by certificates shall have no effect on the rights and obligations
of shareholders. If the shares are represented by certificates, such shares
shall be represented by consecutively numbered certificates signed, either
manually or by facsimile, in the name of the corporation by the president. In
case any officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before such
certificate is issued, such certificate may nonetheless be issued by the
corporation with the same effect as if he were such officer at the date of its
issue. All certificates shall be consecutively numbered, and the names of the
owners, the number of shares, and the date of issue shall be entered on the
books of the corporation. Each certificate representing shares shall state upon
its face:
(i) That
the corporation is organized under the laws of Nevada;
(ii) The
name of the person to whom issued;
(iii) The
number and class of the shares and the designation of the series, if any, that
the certificate represents;
(iv) The
par value, if any, of each share represented by the
certificate;
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(v) Any
restrictions imposed by the corporation upon the transfer of the shares
represented by the certificate.
If shares
are not represented by certificates, within a reasonable time following the
issue or transfer of such shares, the corporation shall send the shareholder a
complete written statement of all of the information required to be provided to
holders of uncertificated shares by the General Corporation Law of
Delaware.
Section
2. CONSIDERATION FOR SHARES. Certificated or uncertificated shares shall not be
issued until the shares represented thereby are fully paid. The board of
directors may authorize the issuance of shares for consideration consisting of
any tangible or intangible property or benefit to the corporation, including
cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, "promissory
note" means a negotiable instrument on which there is an obligation to pay
independent of collateral and does not include a non-recourse note.
Section
3. LOST CERTIFICATES. In case of the alleged loss, destruction or mutilation of
a certificate of stock, the board of directors may direct the issuance of a new
certificate in lieu thereof upon such terms and conditions in conformity with
law as the board may prescribe. The board of directors may in its discretion
require an affidavit of lost certificate and/or a bond in such form and amount
and with such surety as it may determine before issuing a new
certificate.
Section
4. TRANSFER OF SHARES. Upon surrender to the corporation or to a transfer agent
of the corporation of a certificate of stock duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, and receipt
of such documentary stamps as may be required by law and evidence of compliance
with all applicable securities laws and other restrictions, the corporation
shall issue a new certificate to the person entitled thereto, and cancel the old
certificate. Every such transfer of stock shall be entered on the stock books of
the corporation which shall be kept at its principal office or by the person and
at the place designated by the board of directors.
Except as
otherwise expressly provided in Article II, Sections 7 and 11, and except for
the assertion of dissenters' rights to the extent provided in Article 113 of the
Nevada General Corporation Law, the corporation shall be entitled to treat the
registered holder of any shares of the corporation as the owner thereof for all
purposes, and the corporation shall not be bound to recognize any equitable or
other claim to, or interest in, such shares or rights deriving from such shares
on the part of any person other than the registered holder, including without
limitation any purchaser, assignee or transferee of such shares or rights
deriving from such shares, unless and until such other person becomes the
registered holder of such shares, whether or not the corporation shall have
either actual or constructive notice of the claimed interest of such other
person.
Section
5. TRANSFER AGENT, REGISTRARS AND PAYING AGENTS. The board may at its discretion
appoint one or more transfer agents, registrars and agents for making payment
upon any class of stock, bond, debenture or other security of the corporation.
Such agents and registrars may be located either within or outside Nevada. They
shall have such rights and duties and shall be entitled to such compensation as
may be agreed.
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ARTICLE
VI
INDEMNIFICATION
OF CERTAIN PERSONS
Section
1. INDEMNIFICATION. For purposes of Article VI, a "Proper Person" means any
person (including the estate or personal representative of a director) who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether formal or informal, by reason of the fact that he is
or was a director, officer, employee, fiduciary or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, fiduciary or agent of any foreign or domestic profit
or nonprofit corporation or of any partnership, joint venture, trust, profit or
nonprofit unincorporated association, limited liability company, or other
enterprise or employee benefit plan. The corporation shall indemnify any Proper
Person against reasonably incurred expenses (including attorneys' fees),
judgments, penalties, fines (including any excise tax assessed with respect to
an employee benefit plan) and amounts paid in settlement reasonably incurred by
him in connection with such action, suit or proceeding if it is determined by
the groups set forth in Section 4 of this Article that he conducted himself in
good faith and that he reasonably believed (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in the
corporation's best interests, or (ii) in all other cases (except criminal
cases), that his conduct was at least not opposed to the corporation's best
interests, or (iii) in the case of any criminal proceeding, that he had no
reasonable cause to believe his conduct was unlawful. Official capacity means,
when used with respect to a director, the office of director and, when used with
respect to any other Proper Person, the office in a corporation held by the
officer or the employment, fiduciary or agency relationship undertaken by the
employee, fiduciary, or agent on behalf of the corporation. Official capacity
does not include service for any other domestic or foreign corporation or other
person or employee benefit plan.
A
director's conduct with respect to an employee benefit plan for a purpose the
director reasonably believed to be in the interests of the participants in or
beneficiaries of the plan is conduct that satisfies the requirement in (ii) of
this Section 1. A director's conduct with respect to an employee benefit plan
for a purpose that the director did not reasonably believe to be in the
interests of the participants in or beneficiaries of the plan shall be deemed
not to satisfy the requirement of this section that he conduct himself in good
faith.
No
indemnification shall be made under this Article VI to a Proper Person with
respect to any claim, issue or matter in connection with a proceeding by or in
the right of a corporation in which the Proper Person was adjudged liable to the
corporation or in connection with any proceeding charging that the Proper Person
derived an improper personal benefit, whether or not involving action in an
official capacity, in which he was adjudged liable on the basis that he derived
an improper personal benefit. Further, indemnification under this section in
connection with a proceeding brought by or in the right of the corporation shall
be limited to reasonable expenses, including attorneys' fees, incurred in
connection with the proceeding.
Section
2. RIGHT TO INDEMNIFICATION. The corporation shall indemnify any Proper Person
who was wholly successful, on the merits or otherwise, in defense of any action,
suit, or proceeding as to which he was entitled to indemnification under Section
1 of this Article VI against expenses (including attorneys' fees) reasonably
incurred by him in connection with the proceeding without the necessity of any
action by the corporation other than the determination in good faith that the
defense has been wholly successful.
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Section
3. EFFECT OF TERMINATION OF ACTION. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent shall not of itself create a presumption that the
person seeking indemnification did not meet the standards of conduct described
in Section 1 of this Article VI. Entry of a judgment by consent as part of a
settlement shall not be deemed an adjudication of liability, as described in
Section 2 of this Article VI.
Section
4. GROUPS AUTHORIZED TO MAKE INDEMNIFICATION DETERMINATION. Except where there
is a right to indemnification as set forth in Sections 1 or 2 of this Article or
where indemnification is ordered by a court in Section 5, any indemnification
shall be made by the corporation only as determined in the specific case by a
proper group that indemnification of the Proper Person is permissible under the
circumstances because he has met the applicable standards of conduct set forth
in Section 1 of this Article. This determination shall be made by the board of
directors by a majority vote of those present at a meeting at which a quorum is
present, which quorum shall consist of directors not parties to the proceeding
("Quorum"). If a Quorum cannot be obtained, the determination shall be made by a
majority vote of a committee of the board of directors designated by the board,
which committee shall consist of two or more directors not parties to the
proceeding, except that directors who are parties to the proceeding may
participate in the designation of directors for the committee. If a Quorum of
the board of directors cannot be obtained and the committee cannot be
established, or even if a Quorum is obtained or the committee is designated and
a majority of the directors constituting such Quorum or committee so directs,
the determination shall be made by (i) independent legal counsel selected by a
vote of the board of directors or the committee in the manner specified in this
Section 4 or, if a Quorum of the full board of directors cannot be obtained and
a committee cannot be established, by independent legal counsel selected by a
majority vote of the full board (including directors who are parties to the
action) or (ii) a vote of the shareholders. Authorization of indemnification and
advance of expenses shall be made in the same manner as the determination that
indemnification or advance of expenses is permissible except that, if the
determination that indemnification or advance of expenses is permissible is made
by independent legal counsel, authorization of indemnification and advance of
expenses shall be made by the body that selected such counsel.
Section
5. COURT-ORDERED INDEMNIFICATION. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If a court determines that the Proper Person is
entitled to indemnification under Section 2 of this Article, the court shall
order indemnification, including the Proper Person's reasonable expenses
incurred to obtain court-ordered indemnification. If the court determines that
such Proper Person is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not he met the standards of
conduct set forth in Section 1 of this Article or was adjudged liable in the
proceeding, the court may order such indemnification as the court deems proper
except that if the Proper Person has been adjudged liable, indemnification shall
be limited to reasonable expenses incurred in connection with the proceeding and
reasonable expenses incurred to obtain court-ordered
indemnification.
Section 6. ADVANCE OF EXPENSES.
Reasonable expenses (including attorneys' fees) incurred in defending an action,
suit or proceeding as described in Section 1 may be paid by the corporation to any Proper Person in
advance of the final disposition of such action, suit or proceeding upon receipt of (i) a
written affirmation of such Proper Person's good faith belief that he has met the standards of conduct
prescribed by Section 1 of this Article VI, (ii) a written undertaking, executed personally or on
the Proper Person's behalf, to repay such advances if it is ultimately determined that he did not
meet the prescribed standards of conduct (the undertaking shall be an unlimited general
obligation of the Proper Person but need not be secured and may be accepted without reference to financial
ability to make repayment), and (iii) a determination is made by the proper
group (as described in Section 4 of this Article VI) that the facts as then
known to the group would not preclude indemnification. Determination and
authorization of payments shall be made in the same manner specified in Section
4 of this Article VI.
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Section
7. ADDITIONAL INDEMNIFICATION TO CERTAIN PERSONS OTHER THAN DIRECTORS. In
addition to the indemnification provided to officers, employees, fiduciaries or
agents because of their status as Proper Persons under this Article, the
corporation may also indemnify and advance expenses to them if they are not
directors of the corporation to a greater extent than is provided in these
bylaws, if not inconsistent with public policy, and if provided for by general
or specific action of its board of directors or shareholders or by
contract.
Section
8. WITNESS EXPENSES. The sections of this Article VI do not limit the
corporation's authority to pay or reimburse expenses incurred by a director in
connection with an appearance as a witness in a proceeding at a time when he has
not been made or named as a defendant or respondent in the
proceeding.
Section
9. REPORT TO SHAREHOLDERS. Any indemnification of or advance of expenses to a
director in accordance with this Article VI, if arising out of a proceeding by
or on behalf of the corporation, shall be reported in writing to the
shareholders with or before the notice of the next shareholders' meeting. If the
next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such
action.
ARTICLE
VII
INSURANCE
Section
1. PROVISION OF INSURANCE. By action of the board of directors, notwithstanding
any interest of the directors in the action, the corporation may purchase and
maintain insurance, in such scope and amounts as the board of directors deems
appropriate, on behalf of any person who is or was a director, officer,
employee, fiduciary or agent of the corporation, or who, while a director,
officer, employee, fiduciary or agent of the corporation, is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee, fiduciary or agent of any other foreign or domestic profit or
nonprofit corporation or of any partnership, joint venture, trust, profit or
nonprofit unincorporated association, limited liability company, other
enterprise or employee benefit plan, against any liability asserted against, or
incurred by, him in that capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such
liability under the provisions of Article VI or applicable law. Any such
insurance may be procured from any insurance company designated by the board of
directors of the corporation, whether such insurance company is formed under the
laws of Nevada or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the corporation has an equity interest
or any other interest, through share ownership or
otherwise.
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ARTICLE
VIII
MISCELLANEOUS
Section
1. SEAL. The board of directors may adopt a corporate seal, which shall contain
the name of the corporation and the words, "Seal, Nevada."
Section
2. FISCAL YEAR. The fiscal year of the corporation shall be as established by
the board of directors.
Section
3. AMENDMENTS. The board of directors shall have power, to the maximum extent
permitted by the Nevada General Corporation Law, to make, amend and repeal the
bylaws of the corporation at any regular or special meeting of the board unless
the shareholders, in making, amending or repealing a particular bylaw, expressly
provide that the directors may not amend or repeal such bylaw. The shareholders
also shall have the power to make, amend or repeal the bylaws of the corporation
at any annual meeting or at any special meeting called for that
purpose.
Section
4. RECEIPT OF NOTICES BY THE CORPORATION. Notices, shareholder writings
consenting to action, and other documents or writings shall be deemed to have
been received by the corporation when they are actually received: (1) at the
registered office of the corporation in Nevada; (2) at the principal office of
the corporation (as that office is designated in the most recent document filed
by the corporation with the secretary of state for Nevada designating a
principal office) addressed to the attention of the secretary of the
corporation; (3) by the secretary of the corporation wherever the secretary may
be found; or (4) by any other person authorized from time to time by the board
of directors or the president to receive such writings, wherever such person is
found.
Section
5. GENDER. The masculine gender is used in these bylaws as a matter of
convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
Section
6. CONFLICTS. In the event of any irreconcilable conflict between these bylaws
and either the corporation's articles of incorporation or applicable law, the
latter shall control.
Section
7. DEFINITIONS. Except as otherwise specifically provided in these bylaws, all
terms used in these bylaws shall have the same definition as in the General
Corporation Law of Nevada.
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