Attached files
Exhibit
3.2
AMENDED
AND RESTATED BYLAWS
OF
AMBICOM
HOLDINGS, INC.
(Formally,
Med Control, Inc.)
ARTICLE
I
Offices
Section
1. Registered Office. The registered office of Ambicom Holdings, Inc. (the
ÒCorporationÓ) shall be maintained at such locations within the State of Nevada
as the Board of Directors from time to time shall designate. The Corporation
shall maintain in charge of such registered office an agent upon whom process
against the Corporation may be served.
Section
2. Other Offices. The Corporation may also have an office or offices at such
other place or places, either within or without the State of Nevada, as the
Board of Directors from time to time may determine or the business of the
Corporation may require.
ARTICLE
II
Meetings
of Shareholders
Section
1. Annual Meetings. Subject to the provisions of these Bylaws, the annual
meeting of the shareholders for the election of directors and for the
transaction of such other business as may properly come before such meeting
shall be held on such date and at such time as shall be designated by the Board
of Directors and stated in the notice of such meeting. If the election for
directors shall not be held on the day designated therefor or at any adjournment
thereof, the directors shall cause such election to be held at a special meeting
of the shareholders as soon thereafter as may be convenient. At such special
meeting, subject to the provisions of these Bylaws, the shareholders may elect
the directors and transact any other business with the same force and effect as
at an annual meeting duly called and held.
Section
2. Special Meetings. A special meeting of the shareholders for any purpose or
purposes, unless otherwise prescribed by statute, may be called at any time and
shall be called by the Chief Executive Officer, President or Secretary, upon the
direction of the Board of Directors, or upon the written request of a
stockholder or shareholders holding of record at least ten percent (10%) of the
outstanding shares of the Corporation entitled to vote at such a
meeting.
Section
3. Place of Meetings. All meetings of the shareholders shall be held at the
principal place of business of the Corporation or at such other place, if any,
within or without the State of Nevada, as shall be designated by the Board of
Directors and stated in the notice of each such meeting.
Section
4. Notice of Meetings. Except as otherwise provided by law, notice of each
meeting of the shareholders, whether annual, special, or adjourned, shall be
given, not less than ten (10) days nor more than sixty (60) days before the day
on which such meeting is to be held, to each stockholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the
Corporation. Notice of any meeting of shareholders shall not be required to be
given to any stockholder who shall attend such meeting in person or by proxy,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. If any stockholder shall in person
or by proxy waive notice, in writing, of such meeting, whether before or after
such meeting, notice thereof need not be given to such stockholder. Notice of
any adjourned meeting of the shareholders shall not be required to be given,
except when expressly required by law.
Section
5. Quorum. At each meeting of the shareholders, the presence in person or by
proxy of shareholders holding of record a majority of the outstanding shares
entitled to vote at such meeting shall be necessary and sufficient to constitute
a quorum for the transaction of business. In the absence of a quorum, the
shareholders entitled to vote who are present in person or by proxy at the time
and place of any meeting, [or, if no stockholder entitled to vote is so present
in person or by proxy, any officer entitled to preside at or act as secretary of
such meeting] may adjourn such meeting from time to time, without notice other
than an announcement at such meeting, until a quorum shall be present. At any
such adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section
6. Organization. Meetings of the shareholders shall be presided over by the
Chairman of the Board, or, in his or her absence, by the Chief Executive
Officer, or in his or her absence, by the President, or, in his or her absence,
a Vice President, or, in the absence of the Chairman of the Board, the Chief
Executive Officer, the President and all of the Vice Presidents, a chairman
chosen by a majority in interest of the shareholders present in person or by
proxy and entitled to vote thereat, shall act as chairman. The Secretary, or, in
his or her absence, an Assistant Secretary, shall act as secretary at all
meetings of the shareholders. In the absence from any such meeting of the
Secretary or an Assistant Secretary, the chairman may appoint any person to act
as secretary of such meeting.
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Section
7. Business and Order of Business. Subject to the provisions of these Bylaws, at
each meeting of the shareholders, such business may be transacted as may
properly be brought before such meeting.
Section
8. Voting. Except as otherwise provided in the Articles of Incorporation, at
each meeting of the shareholders, each stockholder shall be entitled to one vote
in person or by proxy for each share of the Corporation having voting rights
registered in his or her name on the books of the Corporation at the close of
business on the day next preceding the day on which notice of such meeting was
given, or, if no notice was given, on the day next preceding the day on which
such meeting is held, except when, pursuant to the provisions of Section 7 of
Article VII of these Bylaws, a date shall have been fixed as a record date for
the determination of the shareholders entitled to vote. Any stockholder entitled
to vote may vote in person or by proxy in writing; provided, however, that no
proxy shall be valid after three years after the date of its execution, unless
otherwise provided therein. The presence at any meeting of any stockholder who
has given a proxy shall not revoke such proxy, unless such stockholder shall
file written notice of such revocation with the secretary of such meeting prior
to the voting of such proxy.
At each
meeting of the shareholders, all matters other than those the manner of deciding
of which is expressly regulated by statute, the Articles of Incorporation, or
these Bylaws, shall be decided by a majority of the votes cast by the holders of
shares entitled to vote thereon.
The Board
of Directors, in advance of any meeting of the shareholders, or the chairman of
such meeting, at such meeting, may, and shall if required by law, appoint one or
more inspectors of election to act at such meeting or any adjournment
thereof.
Section
9. Conduct of Meetings of Shareholders. Meetings of the shareholders shall
generally follow reasonable and fair procedure. Subject to the foregoing, the
conduct of any meeting and the determination of procedure and rules shall be
within the absolute discretion of the chairman, and there shall be no appeal
from any ruling of the chairman with respect to procedure or rules. Accordingly,
in any meeting of the shareholders, or part thereof, the chairman shall have the
absolute power to determine appropriate rules or to dispense with theretofore
prevailing rules. Without limiting the foregoing, the following rules shall
apply:
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(a)
Within his or her sole discretion, the chairman of a meeting may adjourn such
meeting by declaring such meeting adjourned. Upon his or her doing so, such
meeting shall be immediately adjourned.
(b) The
chairman may ask or require that anyone who is not a bona fide stockholder or
proxy leave a meeting.
(c) A
resolution or motion shall be considered for vote only if proposed by a
stockholder or duly authorized proxy, and seconded by a person, who is a
stockholder or a duly authorized proxy, other than the person who proposed the
resolution or motion. The chairman may propose any motion for vote.
(d) The
chairman of a meeting may impose any reasonable limits with respect to
participation by shareholders in a meeting, including, but not limited to,
limits on the amount of time at the meeting taken up by the remarks or questions
or any stockholder, limits on the numbers of questions per stockholder, and
limits as to the subject matter and timing of questions and remarks by
shareholders.
Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
meeting of the shareholders except in accordance with the procedures set forth
in this Section 9; provided, however, that nothing in this Section 9 shall be
deemed to preclude discussion by any stockholder as to any business properly
brought before any meeting.
The
chairman shall, if the facts warrant, determine, and declare at any meeting of
the shareholders that business was not properly brought before such meeting in
accordance with the provisions of this Section 9, and if he or she should so
determine, he or she shall so declare to such meeting and any such business not
properly brought before such meeting shall not be transacted.
Section
10. Advance
Notice of Stockholder Proposed Business at any Meeting of the Shareholders. To
be properly brought before any annual meeting of the shareholders, business must
be either (a) specified in the notice of such meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before such meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before such meeting by a
stockholder. In addition to any other applicable requirements, including, but
not limited to, requirements imposed by federal and state securities laws
pertaining to proxies, for business to be properly brought before any meeting by
a stockholder, such stockholder must have given timely notice thereof in writing
to the Secretary. To be timely, stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
later than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made, whichever first occurs. A stockholder's notice to the Secretary shall
set forth as to each matter such stockholder proposes to bring before any
meeting of the shareholders (i) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such business at
the meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder, and (iv) any material interests of such
stockholder in such business.
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Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section 10. The chairman of such annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before such meeting and in accordance with the provisions of this Section 10,
and if he or she should so determine, he or she shall so declare to such meeting
and any such business not properly brought before such meeting shall not be
transacted.
Section
11. Action by Shareholders Without a Meeting. Any action required or permitted
to be taken at a meeting of the shareholders under any provisions of the Nevada
Business Corporations Act, the Articles of Incorporation, or these Bylaws may be
taken without a meeting if all of the shareholders entitled to vote thereon
consent in writing to such action being taken, or, subject to the provisions the
Nevada Business Corporations Act, if the shareholders who would have been
entitled to cast the minimum number of votes which would be necessary to
authorize such action at a meeting at which all of the shareholders entitled to
vote thereon were present and voting shall consent in writing to such action
being taken. Whenever action of the Corporation is so taken, the consents of the
shareholders consenting thereto shall be filed with the minutes of proceedings
of the shareholders.
ARTICLE
III
Board of
Directors
Section
1. General Powers. The property, affairs, and business of the Corporation shall
be managed by the Board of Directors.
Section
2. Number, Qualifications, and Term of Office. The number of directors
constituting the entire Board of Directors of this corporation shall be not less
than one (1) nor more than nine (9) as fixed from time to time by vote of a
majority of the entire Board of Directors of this Corporation; provided,
however, that the number of directors shall not be reduced so as to shorten the
term of any director at that time in office. The directors shall be elected
annually at the annual meeting of the shareholders. Each director shall hold
office until his or her successor shall have been elected and qualified, until
his or her death, until he or she shall have resigned in the manner set forth in
Section 13 of this Article III, or until he or she shall have been removed in
the manner set forth in Section 14 of this Article III, whichever shall first
occur. Any director elected to fill a vacancy in the Board of Directors shall be
deemed elected for the unexpired portion of the term of his or her predecessor
on the Board of Directors. Each director, at the time of his or her election,
shall be at least eighteen (18) years of age.
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Section
3. Nomination of Directors. (a) Only persons who are nominated in accordance
with the procedures set forth in this section shall be eligible for election as
directors. The Board of Directors, or a duly appointed committee thereof, shall
act as a nominating committee for selecting nominees for election as directors.
Except in the case of a nominee substituted as a result of the death or
incapacity of a nominee of the nominating committee, the nominating committee
shall deliver written nominations to the Secretary at least thirty (30) days
prior to the appropriate date of the meeting of shareholders called for election
of directors. Provided such nominating committee makes such nominations, no
nominations for directors, except those made by the nominating committee, shall
be voted upon at the annual meeting unless other nominations by shareholders are
made in accordance with the provisions of this section. No person shall be
elected as a director of the Corporation unless nominated in accordance with the
procedures set forth in this section. Ballots specifying the names of all
persons nominated by the nominating committee and by shareholders shall be
provided for use at the annual meeting.
(b)
Nominations of persons for election to the Board of Directors of the Corporation
at an annual meeting of shareholders may be made by any stockholder entitled to
vote for the election of directors at such meeting who complies with the
procedures set forth in this section. Such nominations, other than those made by
the Board of Directors or a nominating committee thereof, shall be made pursuant
to timely notice in writing to the Secretary as set forth in this section. To be
timely, a stockholder's notice shall be delivered to or received at the
principal executive offices of the Corporation not less than ninety (90) days
prior to the appropriate anniversary date of the previous meeting of
shareholders of the Corporation called for the election of directors. Each such
stockholder's notice shall set forth (1) the name and address of the stockholder
who intends to make the nomination and of the person or persons to be nominated;
(2) a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (3) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (4) such other information regarding each nominee proposed by
such stockholder as would be required to be disclosed in solicitations of
proxies with respect to nominees for election as directors, pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, including,
but not limited to, information required to be disclosed by Items 4, 5, 6, and 7
of Schedule 14A; (5) the consent of each nominee to serve as director of the
Corporation if so elected; and (6) the class and number of shares of stock of
the Corporation which are beneficially owned by such stockholder on the date of
such stockholder notice and, to the extent known, by any other shareholders
known by such stockholder to be supporting such nominees on the date of such
stockholder notice. At the request of the Board of Directors, any person
nominated by the Board of Directors, or a nominating committee thereof, for
election as a director shall furnish to the Secretary that information required
to be set forth in a stockholder's notice of nomination which pertains to the
nominee together with the required written consents, each as described
herein.
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(c) The
Board of Directors may reject any nomination by a stockholder not timely made in
accordance with the requirements of this section. If the Board of Directors, or
a designated committee thereof, determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
section in any material aspect, the Secretary shall notify such stockholder of
the deficiency in the notice. The stockholder shall have an opportunity to cure
the deficiency by providing additional information to the Secretary within such
period of time, not to exceed five (5) days from the date such deficiency notice
is given to the stockholder, as the Board of Directors or such committee shall
reasonably determine. If the deficiency is not cured within such period, or if
the Board of Directors or such committee reasonably determines that the
additional information provided by the stockholder, together with information
previously provided, does not satisfy the requirements of this section in any
material respect, then the Board of Directors may reject such stockholder's
nomination. The Secretary shall notify a stockholder in writing whether his or
her nomination has been made in accordance with the time and informational
requirements of this section. Notwithstanding the procedures set forth in this
section, if neither the Board of Directors nor such committee makes a
determination as to the validity of any nominations by a stockholder, the
chairman of such annual meeting shall determine and declare at such annual
meeting whether the nomination was made in accordance with the terms of this
section. If such chairman determines a nomination was made in accordance with
the terms of this section, he or she shall so declare at such annual meeting and
ballots shall be provided for use at the annual meeting with respect to such
nominee. If such chairman determines that a nomination was not made in
accordance with this section, he or she shall so declare at the annual meeting
and defective nomination shall be disregarded.
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Section
4. Election of Directors. At each meeting of the shareholders for the election
of directors, the directors shall be chosen by a plurality of the votes cast at
such election by the holders of shares entitled to vote thereon. The vote for
directors need not be by ballot, unless demanded by a stockholder entitled to
vote thereon at such election and before the voting begins. The shareholders
shall not be entitled to cumulate their votes for directors.
Section
5. Annual Meetings. The annual meeting of the Board of Directors shall be held
in each year immediately after the annual meeting of shareholders, at such place
as the Board of Directors from time to time may fix and, if so held, no notice
of such meeting need be given.
Section
6. Regular Meetings. Regular meetings of the Board of Directors shall be held at
such times as the Board of Directors shall determine. If any day fixed for a
regular meeting shall be a legal holiday at the place where the meeting is to be
held, then the meeting which would otherwise be held on that day shall be held
at said place at the same hour on the next succeeding business day that is not a
legal holiday. Notice of regular meetings need not be given.
Section
7. Special Meetings. Special meetings of the Board of Directors shall be held
whenever called by the Chief Executive Officer or any one (1) director. Notice
of each such meeting shall be mailed to each director, addressed to him or her
at his or her residence or usual place of business, at least five days before
the day on which such meeting is to be held, or shall be sent to him or her at
such place by telecopier, telephone or other means of electronic transmission,
or be delivered personally, not later than the day preceding the day on which
such meeting is to be held. Neither the business to be transacted nor the
purpose of any such meeting need be specified in such notice. Notice of any
meeting of the Board of Directors need not be given, however, if waived in
writing or by electronic transmission, either before or after such meeting, or,
at the meeting. Any meeting of the Board of Directors shall be a legal meeting
without any notice having been given, if all the directors shall be present
thereat.
Section
8. Place of Meeting. Meetings of the Board of Directors may be held at such
place or places within or without the State of Nevada as the Board of Directors
from time to time may designate.
Section
9. Quorum and Manner of Acting. A majority of the directors shall be required to
constitute a quorum for the transaction of business at any meeting. The act of a
majority of the directors present at any meeting while a quorum is present shall
be an act of the Board of Directors. In the absence of a quorum, a majority of
the directors present may adjourn any meeting from time to time until a quorum
be had. Notice of any adjourned meeting shall be given, in the same manner as
notice of special meetings is required to be given, as set forth in these
Bylaws. The directors shall act only as a board and the individual directors
shall have no power as such.
8
Section
10. Action by Written Consent. Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if, prior or subsequent to such action, all members of the
Board of Directors or of such committee, as the case may be, consent thereto in
writing or by electronic transmission and such written consents or electronic
transmissions are filed with the minutes of the proceedings of the Board of
Directors or such committee. Such consent shall have the same effect as a
unanimous vote of the Board of Directors or such committee for all purposes and
may be stated as such in any certificate or other document.
Section
11. Organization. At each meeting of the Board of Directors, the Chairman of the
Board, or in his or her absence, the Chief Executive Officer, or in his or her
absence, the President or, in his or her absence, a chairman chosen by a
majority of the directors present, shall act as chairman. The Secretary, or, in
his or her absence, an Assistant Secretary, or, in the absence of the Secretary
and the Assistant Secretaries, any person appointed by the chairman, shall act
as secretary of such meeting.
Section
12. Order of Business. At all meetings of the Board of Directors business may be
transacted in such order as the Chairman of the Board of Directors may
determine.
Section
13. Resignations. Any director of the Corporation may resign at any time by
giving written notice to the Chief Executive Officer, President or to the
Secretary. The resignation of any director shall take effect at the time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make such resignation
effective.
Section
14. Removal of Directors. Any director may be removed at any time, either with
or without cause, by the shareholders at any regular or special meeting of the
shareholders and the vacancy in the Board of Directors caused thereby may be
filled by the shareholders at the same meeting.
Section
15. Vacancies. Unless otherwise provided in the Articles of Incorporation or
these Bylaws, vacancies and newly created directorships resulting from an
increase in the authorized number of directors may be filled by a majority of
the remaining directors, even if less than a quorum, or by a sole remaining
director. Each director so elected shall hold office until the next annual
meeting of shareholders and until a successor shall have been duly elected and
qualified, or until such director's earlier death, disqualification, resignation
or removal.
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Section
16. Indemnification of Directors or Officers. The Corporation shall indemnify
each director and officer of the Corporation as set forth in Article VI of these
Bylaws.
Section
17. Committees.
(a) Committees of
the Board of Directors. The Board of Directors may from time to time designate
committees of the Board of Directors, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board of Directors
and shall, for those committees and any others provided for herein, elect a
director or directors to serve as the member or members, designating, if it
desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. The Board of Directors may
at any time for any reason remove any individual committee member and the Board
of Directors may fill any committee vacancy created by death, disqualification,
resignation, removal or increase in the number of members of the committee. In
the absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at
the meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member.
(b) Meetings and
Action of Committees. Any committee of the Board of Directors may adopt such
rules and regulations not inconsistent with the provisions of law, the Articles
of Incorporation or these Bylaws for the conduct of its meetings as such
committee may deem proper.
Section
18. Telephonic Meeting. Unless restricted by the Articles of Incorporation, any
one or more members of the Board of Directors may participate in a meeting of
the Board of Directors by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting.
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ARTICLE
IV
Officers
Section
1. Number. The officers of the Corporation shall be a Chief Executive Officer, a
President, a Chief Financial Officer, a Treasurer and a Secretary, and, in the
discretion of the Board of Directors, one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers or such other officers as the Board of
Directors shall from time to time deem necessary or desirable.
Section
2. Election, Qualifications, and Terms of Office. The officers shall be elected
annually by the Board of Directors. Each officer shall hold office until his or
her successor shall have been elected and qualified, or until his or her earlier
death, resignation, or removal in the manner provided in these Bylaws. Any
person may hold more than one office.
Section
3. Resignations. Any officer may resign at any time by giving written notice of
such resignation to the Board of Directors, the Chief Executive Officer, the
President, or the Secretary. Unless otherwise specified in such written notice,
such resignation shall take effect upon receipt of the notice thereof by the
Board of Directors or any such officer.
Section
4. Vacancies. A vacancy in any office because of death, resignation, removal,
disqualification, or any other cause shall be filled for the unexpired portion
of the term by the Board of Directors.
Section
5. Chief Executive Officer. The Chief Executive Officer shall have general
supervision and direction of the business and affairs of the Corporation, shall
be responsible for corporate policy and strategy, and shall report directly to
the Chairman of the Board of Directors. The Chief Executive Officer may sign and
execute, in the name of the Corporation, deeds, mortgages, bonds, contracts,
agreements, and other instruments, except in these instances where the signing
and execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent. From time to time, the Chief Executive Officer
shall report to the Board of Directors all matters within his or her knowledge
which the interests of the Corporation may require to be brought to their
attention. The Chief Executive Officer shall also perform such other duties as
are given to him or her by these Bylaws or as from time to time may be assigned
to him or her by the Board of Directors. Unless otherwise provided in these
Bylaws, all other officers of the Corporation shall report directly to the Chief
Executive Officer or as otherwise determined by the Chief Executive Officer. The
Chief Executive Officer shall see that all orders and resolutions of the Board
of Directors are carried into effect. The Chief Executive Officer shall, if
present and in the absence of the Chairman of the Board of Directors, preside at
meetings of the shareholders and of the Board of Directors.
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Section
6. The President. Subject to the direction of the Board of Directors, the
President shall have general charge of the business affairs and property of the
Corporation and general supervision over its officers and agents. The President
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President may sign, with any other officer hereunto authorized,
share certificates of the Corporation, the issuance of which shall have been
duly authorized, and may sign and execute, in the name of the Corporation,
deeds, mortgages, bonds, contracts, agreements, and other instruments duly
authorized by the Board of Directors, except in these instances where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent. From time to time, the President shall
report to the Board of Directors all matters within his or her knowledge which
the interests of the Corporation may require to be brought to their attention.
The President shall also perform such other duties as are given to him or her by
these Bylaws or as from time to time may be assigned to him or her by the Board
of Directors.
Section
7. The Secretary. The Secretary shall (a) record all the proceedings of the
meetings of the shareholders and Board of Directors in a book or books to be
kept for that purpose; (b) cause all notices to be duly given in accordance with
the provisions of these Bylaws and as required by statute; (c) be custodian of
the records and of the seal of the Corporation and cause such seal to be affixed
to all certificates representing shares of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized; (d) see that the
lists, books, reports, statements, certificates, and other documents and records
required by statute are properly kept and filed; (e) have charge of the share
record books of the Corporation and cause the same to be kept in such manner as
to show at any time the amount of shares of the Corporation issued and
outstanding, the names and addresses of the holders of record thereof, the
number of shares held by each, and the date when each became such holder of
record; (f) perform the duties required of him or her under Section 9 of Article
II of these Bylaws; (g) sign (unless the Treasurer shall sign) certificates
representing shares of the Corporation, the issuance of which shall have been
duly authorized; and (h) in general, perform all duties incident to the office
of Secretary and such other duties as are given to him or her by these Bylaws or
as from time to time may be assigned to him or her by the Board of Directors or
the Chief Executive Officer.
Section
8. The Chief Financial Officer. The Chief Financial Officer shall (a) have
charge of and supervision over and by responsible for the funds, securities,
receipts, and disbursements of the Corporation; (b) cause the moneys and other
valuable effects of the Corporation to be deposited in the name and to the
credit of the Corporation in such banks or trust companies, or with such bankers
or other depositories, as shall be selected in accordance with Section 3 of
Article V of these Bylaws or to be otherwise dealt with in such manner as the
Board of Directors may direct; (c) cause the funds of the Corporation to be
disbursed by checks or drafts upon the authorized depositories of the
Corporation and cause to be taken and preserved proper vouchers for all moneys
disbursed; (d) render to the Board of Directors or the Chief Executive Officer,
whenever requested, a statement of the financial condition of the Corporation
and of all his or her transactions as Chief Financial Officer; (e) cause to be
kept, at the principal office of the Corporation or at such other office (within
or without the State of Nevada) as shall be designated by the Board of
Directors, correct books of account of all its business and transactions; (f)
sign (unless the Secretary shall sign) certificates representing shares of the
Corporation, the issuance of which shall have been duly authorized; and (g) in
general, perform all duties incident to the office of Chief Financial Officer
and such other duties as are given to him or her by these Bylaws or as from time
to time may be assigned to him or her by the Board of Directors or the Chief
Executive Officer.
12
Section
9. Treasurer. The Treasurer shall, in general, perform all duties incident to
the office of Treasurer and such other duties as are given to him or her by
these Bylaws or as from time to time may be assigned to him or her by the Board
of Directors or the Chief Executive Officer.
Section
10. The Vice Presidents. At the request of the Chief Executive Officer or
President, any Vice President shall perform all the duties of the President and,
when so acting, shall have all the powers of and be subject to all restrictions
upon the President. Any Vice President may also sign, with any other officer
thereunto duly authorized, share certificates of the Corporation, the issuance
of which shall have been duly authorized, and may sign and execute in the name
of the Corporation, deeds, mortgages, bonds, contracts, agreements, and other
instruments duly authorized by the Board of Directors, except in those instances
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent. Each Vice President shall
perform such other duties as are given to him or her by these Bylaws or as from
time to time may be assigned to him or her by the Board of Directors or the
Chief Executive Officer.
Section
11. Salaries. The salaries of the officers of the Corporation shall be fixed
from time to time by the Board of Directors. No officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a director of
the Corporation.
Section
12. Surety Bonds. In the event the Board of Directors shall so require, any
officer or agent of the Corporation shall execute a bond to the Corporation, in
such amount and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful discharge of his or her
duties.
13
ARTICLE
V
Contracts
and Financial Matters
Section
1. Execution of Contracts. Any officer of the Corporation, subject to the
approval of the Board of Directors, may enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation. Such
authorization may be general or restricted to specific instances.
Section
2. Checks and Drafts. All checks, drafts, or other orders for the payment of
money and all notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or agent or agents of
the Corporation as shall be thereunto so authorized from time to time by
resolution of the Board of Directors.
Section
3. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to its credit in such banks or trust companies or
with such bankers or other depositaries as the Board of Directors may select or
as may be selected by any officer or officers or agent or agents authorized so
to do by the Board of Directors. Endorsements for deposit to the credit of the
Corporation in any of its duly authorized depositaries shall be made in such
manner as the Board of Directors from time to time may determine.
Section
4. General and Special Bank Accounts. The Board of Directors may authorize from
time to time the opening and keeping of general and special bank accounts with
such banks, trust companies, or other depositaries as the Board of Directors may
designate and may make such special rules and regulations with respect thereto,
not inconsistent with the provisions of these Bylaws, as the Board of Directors
may deem expedient.
Section
5. Loans. No loans or advances shall be contracted on behalf of the Corporation
and no negotiable paper shall be issued in its name, unless and except as
authorized by the Board of Directors. Such authorization may be general or
restricted to specific instances. Any officer or agent of the Corporation
thereunto so authorized may effect loans and advances for the Corporation and
for such loans and advances may make, execute, and deliver promissory notes,
bonds, or other evidences of indebtedness of the Corporation. Any officer or
agent of the Corporation thereunto so authorized may pledge, hypothecate, or
transfer, as security for the payment of any and all loans, advances,
indebtedness, and liabilities of the Corporation, any and all stocks, bonds,
other securities, and other personal property at any time held by the
Corporation and, to that end, may endorse, assign, and deliver the same and do
every act and shine necessary or proper in connection
therewith.
14
Section
6. Proxies. Proxies to vote with respect to shares of stock of other
corporations owned by or standing in the name of the Corporation may be executed
and delivered from time to time on behalf of the Corporation by the Chief
Executive Officer or such person or persons as shall be thereunto authorized
from time to time by the Chief Executive Officer or the Board of
Directors.
ARTICLE
VI
Indemnification
and Insurance
Section
1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any pending, threatened, or
completed civil, criminal, administrative, or arbitration action, suit, or
proceeding, or any appeal therein or any inquiry or investigation which could
lead to such action, suit, or proceeding (ÒproceedingÓ), by reason of his or her
being or having been a director or officer of the Corporation or of any
constituent corporation absorbed by the Corporation in a consolidation or merger
or by reason of his or her being or having been a director or officer of any
other corporation (domestic or foreign) or of any partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or such enterprise (whether
or not for profit), serving as such at the request of the Corporation or of any
such constituent corporation, or the legal representative of any such director
or officer shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the Nevada Business Corporations Act , as the same
exists or may hereafter be amended, from and against any and all reasonable
costs, disbursements, and attorney's fees, and any and all amounts paid or
incurred in satisfaction of settlements, judgments, fines, and penalties,
incurred or suffered in connection with any such proceeding, and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors,
administrators, and assigns; provided, however, that, except as provided in
Section 2 of this Article VI, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
specifically authorized by the Board of Directors of the Corporation. The right
to indemnification specified in this Article VI shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
connection with any proceeding in advance of the final disposition of such
proceeding as authorized by the Board of Directors; provided, however; that, if
the Nevada Business Corporations Act so requires, the payment of such
expenses in advance of the final disposition of a proceeding shall be made only
upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer to repay all amounts so advanced unless it shall ultimately
be determined that such person is entitled to be indemnified under this article
or otherwise.
15
Section
2. Right of Claimant to Bring Suit. If a claim made under Section 1 of this
Article VI (following the final disposition of such action, suit, or proceeding)
is not paid in full by the Corporation within thirty (30) days after a written
request has been received by the Corporation, the claimant may, at any time
thereafter, apply to a court for an award of indemnification by the Corporation
for the unpaid amount of the claim and, if successful on the merits or otherwise
in connection with any proceeding or in the defense of any claim, issue, or
matter therein, the claimant shall also be entitled to be paid by the
Corporation for any and all expenses incurred or suffered in connection with
such proceeding. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advancement of expenses incurred in
connection with any proceeding where the required undertaking, if any, has been
tendered to the Corporation) that the claimant has not satisfied the standard of
conduct which makes it permissible under the Nevada Business Corporations
Act for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such proceeding that indemnification of the
claimant is proper in the circumstances because he or she has satisfied the
applicable standard of conduct set forth in the Nevada Business Corporations Act
, nor an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, or its shareholders) that the claimant
has not satisfied such applicable standard of conduct, nor the termination of
any proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has not satisfied the applicable standard of
conduct
Section
3. Nonexclusivity of Rights. The right to indemnification and advance of
expenses provided by or granted pursuant to this Article VI shall not exclude or
be exclusive of any other rights to which any person may be entitled under the
Articles of Incorporation of the Corporation, these Bylaws, any agreement, vote
of shareholders, or otherwise; provided, however, that no indemnification shall
be made to or on behalf of such person if a judgment or other final adjudication
adverse to such person establishes that such person has not satisfied the
applicable standard of conduct required to be satisfied under the Nevada
Business Corporations Act .
Section
4. Insurance. The Corporation may purchase and maintain insurance on behalf of
any director, officer, employee, or agent of the Corporation, or of another
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against any expenses incurred in any proceeding and against any
liabilities asserted against him or her by reason of such person's being or
having been such a director, officer, employee, or agent, whether or not the
Corporation would have the power to indemnify such person against such expenses
and liabilities under the provisions of this Article VI or
otherwise.
16
Section
5. Amendment. Any amendment, alteration or repeal of this Article VI that
adversely affects any right of an indemnitee or its successors shall be
prospective only and shall not limit or eliminate any such right with respect to
any proceeding involving any occurrence or alleged occurrence of any action or
omission to act that took place prior to such amendment or repeal.
Section
6. Subrogation. In the event of payment under this Article VI, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of the indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Corporation effectively to bring suit
to enforce such rights.
ARTICLE
VII
Shares
and Their Transfer
Section
1. Share Certificates. Every holder of shares of the Corporation represented by
certificates shall be entitled to have a certificate, signed by the Chairman of
the Board, the President or a Vice President and either the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, certifying the
number of shares owned by him or her in the Corporation; provided that the Board
of Directors may provide by resolution or resolutions that some or all of any or
all classes or series of stock shall be uncertificated shares. In case any
officer of the Corporation who has signed any such certificate shall cease to be
such officer, for whatever cause, before the certificate shall have been
delivered by the Corporation, the certificate shall be deemed to have been
adopted by the Corporation, unless the Board of Directors shall otherwise
determine prior to the issuance and delivery thereof, and may be issued and
delivered as though the person who signed it had not ceased to be such officer
of the Corporation. Certificates representing shares of the Corporation shall be
in such form as shall be approved by the Board of Directors. There shall be
entered upon the share record books of the Corporation, at the time of issuance
of each share, the number of the certificate issued, the name and address of the
person owning the shares represented thereby, the number of shares, and the date
of issuance thereof. Every certificate exchanged or returned to the Corporation
shall be marked ÒcancelledÓ with the date of cancellation.
17
Section
2. Share Record Books. The share record books and the blank share certificate
books shall be kept by the Secretary, or by any officer or agent designated by
the Board of Directors.
Section
3. Addresses of Shareholders. Each stockholder shall designate to the Secretary
of the Corporation an address at which notices of meetings and all other
corporate notices may be served, delivered, or mailed to such stockholder and,
if any stockholder shall fail to designate such address, all corporate notices
(whether served or delivered by the Secretary, another stockholder, or any other
person) may be served upon such stockholder by mail directed to him or her at
his or her last known post office address.
Section
4. Transfers of Shares. Transfers of shares of the Corporation shall be made on
the books of the Corporation by the holder or record thereof or by his or her
attorney thereunto duly authorized by a power of attorney duly executed in
writing and filed with the Secretary and on surrender of the certificate or
certificates representing such shares. The Corporation shall be entitled to
treat the holder of record of any shares as the absolute owner thereof for all
purposes and, accordingly, shall not be obligated to recognize any legal,
equitable, or other claim to or interest in such shares on the part of any other
person, whether or not it or they shall have express of other notice thereof,
except as otherwise expressly provided by statute; provided, however, that
whenever any transfer of shares shall be made for collateral or security and not
absolutely and written notice thereof shall be given to the Secretary, such fact
shall be expressed in the entry of the transfer. Notwithstanding anything to the
contrary contained in these Bylaws, the Corporation shall not be required or
permitted to make any transfer of shares of the Corporation which, if made,
would violate the provisions of any agreement restricting the transfer of shares
of the Corporation to which the Corporation shall be a party; provided, however,
that the restriction upon the transfer of the shares represented by any share
certificate shall be set forth or referred to upon the certificate.
Section
5. Regulations. Subject to the provisions of this Article VII, the Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issuance, transfer, and registration of certificates for shares
of the Corporation.
Section
6. Lost, Destroyed, and Mutilated Certificates. The holder of any shares shall
immediately notify the Corporation of any loss, destruction, or mutilation of
the certificate therefor and the Board of Directors, in its discretion, may
cause to be issued to him or her a new certificate or certificates upon
surrender of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction. The Board of
Directors, in its discretion, may require the owner of the lost or destroyed
certificate or his or her legal representative to give the Corporation a bond,
in such amount (not exceeding twice the value of such shares) and with such
surety or sureties as it may direct, to indemnify the Corporation against any
claim that may be made against it on account of the alleged loss or destruction
of any such certificate.
18
Section
7. For purposes of determining the shareholders entitled to notice of any
meeting or to vote thereat, or to receive payment of any dividend or other
distribution or allotment of any rights or the shareholders entitled to exercise
any rights in respect of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) days nor
less than (10) days before the date of such meeting, nor more than sixty (60)
days prior to the time for such other action as herein described, as the case
may be. In that case, only shareholders of record at the close of business on
the date so fixed shall be entitled to notice and to vote, or to receive the
dividend, distribution or allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date so fixed, except as otherwise required by law,
the Articles of Incorporation or these Bylaws.
If the
Board of Directors does not so fix a record date, (i) the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held and (ii) the record date for determining shareholders entitled
to receive payment of any dividend or other distribution or allotment of rights,
or to exercise such rights, shall be the close of business on the business day
on which the Board of Directors adopts a resolution relating thereto or the
sixtieth (60th) day before the date of the relevant action, whichever is
later.
A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless the
Board of Directors fixes a new record date for the adjourned meeting, but the
Board of Directors shall fix a new record date if the meeting is adjourned for
more than thirty (30) days from the date set for the original
meeting.
Section
8. Refusal to Register Transfer. The Corporation shall not register any transfer
of securities issued by the Corporation in any transaction that qualifies for
the exemption from registration requirements specified by the provisions of
Regulation S, unless such transfer is made in accordance with the provisions of
Regulation S.
19
ARTICLE
VIII
Dividends
and Surplus
Subject
to any restrictions imposed by statute, the Board of Directors from time to
time, in its discretion, may fix and vary the amount of the working capital of
the Corporation and determine what, if any, dividends shall be declared and paid
to the shareholders out of the surplus of the Corporation. The Board of
Directors, in its discretion, may use and apply any surplus in purchasing or
acquiring any of the shares of the Corporation in accordance with law or any of
its bonds, debentures, or other obligations, or from time to time may set aside
from such surplus such amount or amounts as it, in its absolute discretion, may
deem proper as a reserve fund to meet contingencies or for equalizing dividends,
for the purpose of maintaining or increasing the property or business of the
Corporation, or for any other purposes it may deem consistent with the best
interest of the Corporation. All such surplus, until actually declared in
dividends or used and applied as aforesaid, shall be deemed to be so set aside
by the Board of Directors for one or more of said purposes.
ARTICLE
IX
Corporation
Seal
The
Corporation shall have a corporate seal which shall be in circular form, shall
bear the name of the Corporation and the words and figures denoting its
organization under the laws of the State of and the year thereof and otherwise
shall be in such form as shall be approved from time to time by the Board of
Directors.
ARTICLE
X
Fiscal
Year
The
fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
ARTICLE
XI
Accountants
The Board
of Directors of the Corporation from time to time shall designate the
independent accountants of the Corporation.
ARTICLE
XII
Amendments
All
Bylaws of the Corporation shall be subject to amendment, alteration, or repeal,
and new Bylaws not inconsistent with any provision of the Articles of
Incorporation of the Corporation or any provision of law may be made, by the
shareholders or by the Board of Directors, except as otherwise expressly
required by statute. Any Bylaw adopted, amended, or repealed by the shareholders
may be amended or repealed by the Board of Directors, unless the resolution of
the shareholders adopting such Bylaw expressly reserves the right to amend or
repeal it only to the shareholders.
20
ARTICLE
XIII
Force and
Effect
These
Bylaws are subject to the provisions of the Nevada Business Corporations Act and
the Articles of Incorporation, as the same may be amended from time to time. If
any provision in these Bylaws is inconsistent with an express provision of
either of the Nevada Business Corporations Act or the Articles of Incorporation,
the provision of the Nevada Business Corporations Act or the Articles of
Incorporation, as the case may be, shall govern, prevail and control the extent
of such inconsistency.
21