Attached files
| file | filename |
|---|---|
| S-1 - FORM S-1 HYPERSOLAR, INC. - SUNHYDROGEN, INC. | forms1.htm |
| EX-10.1 - EXHIBIT 10.1 - SUNHYDROGEN, INC. | ex101.htm |
| EX-3.2 - EXHIBIT 3.2 - SUNHYDROGEN, INC. | ex32.htm |
| EX-3.1 - EXHIBIT 31. - SUNHYDROGEN, INC. | ex31.htm |
| EX-23.2 - EXHIBIT 23.2 - SUNHYDROGEN, INC. | ex232.htm |
| EX-5.1 - EXHIBIT 5.1 - SUNHYDROGEN, INC. | ex51.htm |
Exhibit
3.4
By-laws
of
Hypersolar,
Inc.
A
Nevada Corporation
Table
of Contents
|
Article
One
|
Offices
and Record
|
1-1
|
|
Section
1.01
|
Registered
Office and Registered Agent
|
1-1
|
|
Section
1.02
|
Corporate
Offices
|
1-1
|
|
Section
1.03
|
Books
and Records
|
1-1
|
|
Section
1.04
|
Inspection
of Records
|
1-1
|
|
Article
Two
|
Shareholders
|
2-1
|
|
Section
2.01
|
Place
of Meetings
|
2-1
|
|
Section
2.02
|
Annual
Meetings
|
2-1
|
|
Section
2.03
|
Special
Meetings
|
2-1
|
|
Section
2.04
|
Consent
of Shareholders in Lieu of Meeting
|
2-1
|
|
Section
2.05
|
Notice;
Waiver of Notice
|
2-2
|
|
Section
2.06
|
Presiding
Officials
|
2-2
|
|
Section
2.07
|
Quorum
|
2-2
|
|
Section
2.08
|
Proxies;
Voting Trusts
|
2-3
|
|
Section
2.09
|
Voting
|
2-3
|
|
Section
2.10
|
Registered
Shareholders
|
2-3
|
|
Section
2.11
|
Shareholders’
Lists
|
2-4
|
|
Section
2.12
|
Conduct
of Meetings
|
2-4
|
|
Article
Three
|
Board
of Directors
|
3-1
|
|
Section
3.01
|
Number
|
3-1
|
|
Section
3.02
|
Powers
of the Board
|
3-1
|
|
Section
3.03
|
Meetings
of the Newly Elected Board
|
3-1
|
|
Section
3.04
|
Notice
of Meetings; Waiver of Notice
|
3-2
|
|
Section
3.05
|
Meetings
by Conference Telephone or Similar Communications
Equipment
|
3-3 |
|
Section
3.06
|
Action
Without a Meeting
|
3-3
|
|
Section
3.07
|
Quorum
|
3-3
|
|
Section
3.08
|
Vacancies
|
3-3
|
|
Section
3.09
|
Committees
|
3-3
|
|
Section
3.10
|
Compensation
of Directors and Committee Members
|
3-4
|
|
Section
3.11
|
Removal
of Directors
|
3-4
|
|
Section
3.12
|
Resignations
|
3-5
|
By-laws of HyperSolar, Inc.
i
|
Article
Four
|
Officers
|
4-1
|
|
Section
4.01
|
Designations
|
4-1
|
|
Section
4.02
|
Term
of Office
|
4-1
|
|
Section
4.03
|
Other
Agents
|
4-1
|
|
Section
4.04
|
Removal
|
4-1
|
|
Section
4.05
|
Vacancies
|
4-2
|
|
Section
4.06
|
Salaries
and Compensation
|
4-2
|
|
Section
4.07
|
Delegation
of Authority to Hire, Discharge, and Designate
|
|
|
Duties
|
4-2
|
|
|
Section
4.08
|
President
|
4-2
|
|
Section
4.09
|
Vice
Presidents
|
4-3
|
|
Section
4.10
|
Secretary
and Assistant Secretaries
|
4-3
|
|
Section
4.11
|
Treasurer
and Assistant Treasurers
|
4-3
|
|
Section
4.12
|
Duties
of Officers May Be Delegated
|
4-4
|
|
Article
Five
|
Indemnification
|
5-1
|
|
Section
5.01
|
Indemnification
in Actions by Third Parties
|
5-1
|
|
Section
5.02
|
Indemnification
in Derivative Action
|
5-1
|
|
Section
5.03
|
Indemnification
for Success on the Merits or Otherwise
|
5-2
|
|
Section
5.04
|
Determination
of Right to Indemnification
|
5-2
|
|
Section
5.05
|
Advancement
of Expenses
|
5-3
|
|
Section
5.06
|
Non-Exclusivity
|
5-3
|
|
Section
5.07
|
Insurance
|
5-3
|
|
Section
5.08
|
Amendment
and Vesting of Rights
|
5-4
|
|
Section
5.09
|
Vesting
of Rights
|
5-4
|
|
Section
5.10
|
Definitions
|
5-4
|
|
Section
5.11
|
Severability
|
5-5
|
|
Article
Six
|
Stock
|
6-1
|
|
Section
6.01
|
Issuance
and Payment for Shares of Stock
|
6-1
|
|
Section
6.02
|
Certificates
Representing Shares of Stock
|
6-1
|
|
Section
6.03
|
Transfers
of Shares — Transfer Agent — Registrar
|
6-1
|
|
Section
6.04
|
Transfers
of Shares — Restrictions
|
6-2
|
|
Section
6.05
|
Closing
of Transfer Books
|
6-2
|
|
Section
6.06
|
Lost
or Destroyed Certificates
|
6-2
|
|
Section
6.07
|
Regulations
|
6-2
|
By-laws of HyperSolar, Inc.
ii
|
Article
Seven
|
Corporate
Finance
|
7-1
|
|
Section
7.01
|
Fixing
of Capital — Transfers of Surplus
|
7-1
|
|
Section
7.02
|
Dividends
|
7-1
|
|
Section
7.03
|
Creation
of Reserves
|
7-1
|
|
|
||
|
Article
Eight
|
General
Provisions
|
8-1
|
|
Section
8.01
|
Fiscal
Year
|
8-1
|
|
Section
8.02
|
Corporate
Seal
|
8-1
|
|
Section
8.03
|
Depositories
|
8-1
|
|
Section
8.04
|
Contracts
with Officers or Directors or Their Affiliates
|
8-1
|
|
Section
8.05
|
Amendments
|
8-2
|
|
Section
8.06
|
Agreements
Among Shareholders
|
8-2
|
|
Article
Nine
|
Certificate
|
By-laws of HyperSolar, Inc.
iii
By-laws
of
Hypersolar,
Inc.
Article
One
Offices
and Record
Section
1.01 Registered Office and
Registered Agent
The
location of the registered office and the name of the registered agent of the
Corporation in the State of Nevada shall be as stated in the Articles of
Incorporation or as shall be determined from time to time by the Board of
Directors and on file in the appropriate office of the State of Nevada, pursuant
to applicable provisions of law. Unless otherwise permitted by law, the address
of the registered office of the Corporation and the address of the business
office of the registered agent shall be identical.
Section
1.02 Corporate
Offices
The
Corporation may have such corporate offices anywhere 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.
Section
1.03 Books and
Records
The
Corporation shall keep correct and complete books and records of account,
including the amount of its assets and liabilities, minutes of its proceedings
of its shareholders and Board of Directors (and any committee having the
authority of the Board), and the names and places of residence of its officers.
The Corporation shall keep at its registered office or principal place of
business in the State of Nevada, or at the office of its transfer agent in the
State of Nevada, if any, books and records in which shall be recorded the number
of shares subscribed, the names of the owners of the shares, the numbers owned
by them respectively, the amount of shares paid, and by whom, the transfer of
such shares with the date of transfer, and, from time to time, such other or
additional records, statements, lists, and information as may be required by
law.
Section
1.04 Inspection of
Records
A
shareholder may, upon written demand, inspect the records of the Corporation,
pursuant to any statutory or other legal right, during the usual and customary
hours of business and in such manner as will not unduly interfere with the
regular conduct of the business of the Corporation. A shareholder may delegate
such shareholder’s right of inspection to a certified or public accountant on
the condition, to be enforced at the option of the Corporation, that the
shareholder and accountant agree with the Corporation promptly to furnish to the
Corporation a true and correct copy of each report with respect to such
inspection made by such accountant. No shareholder shall use, permit to be used,
or acquiesce in the use by others of any information so obtained to the
detriment competitively of the Corporation, nor shall he or she furnish or
permit
to be
furnished any information so obtained to any competitor or prospective
competitor of the Corporation. The Corporation, as a condition precedent to any
shareholder’s inspection of the records of the Corporation, may require the
shareholder to indemnify the Corporation, in such manner and for such amount as
may be determined by the Board of Directors, against any loss or damage that may
be suffered by it arising out of or resulting from any unauthorized disclosure
made or permitted to be made by such shareholder of information obtained in the
course of such inspection.
By-laws of HyperSolar, Inc.
1 -
1
Article
Two
Shareholders
Section
2.01 Place of
Meetings
All
meetings of the shareholders shall be held at the principal business office of
the Corporation in the State of Nevada, or at such other place or places, either
within or without the State of Nevada, as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof. Unless specifically prohibited by law, any
meeting may be held at any place and time, and for any purpose, if consented to
in writing by all of the shareholders entitled to vote at such
meeting.
Section
2.02 Annual
Meetings
An annual
meeting of shareholders shall be held on the second Thursday in February of each
year following the year of incorporation, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at 5:30 p.m. At each annual
meeting of shareholders, the shareholders entitled to vote shall elect
directors. Each director shall be elected to serve until the next succeeding
annual meeting of the shareholders or until such director’s successor is duly
elected and qualified, or until his or her earlier resignation,
disqualification, or removal. At the annual meeting, the shareholders may
transact such other business as may be desired, whether or not the same was
specified in the notice of the meeting, unless the consideration of such other
business, without its having been specified in the notice of the meeting as one
of the purposes thereof, is prohibited by law.
Section
2.03 Special
Meetings
|
a)
|
Special
meetings of the shareholders may be held for any purpose or purposes and
may be called by the President, the Secretary, the executive committee,
the Board of Directors, or the holders of, or any officer or shareholder
upon the written request of the holders of, not less than one-fifth of all
outstanding shares entitled to vote at any such meeting, and shall be
called by any officer directed to do so by the Board. Business transacted
at all special meetings of the shareholders shall be confined to the
purposes stated in the notices of such meetings, unless the transaction of
other business is consented to by the holders of all of the outstanding
shares of stock of the Corporation entitled to vote at the
meeting.
|
|
b)
|
The
“call” and the “notice” of any such meeting shall be deemed to be
synonymous.
|
Section
2.04 Consent of
Shareholders in Lieu of Meeting
Any
action required to be taken or that may be taken at a meeting of the
shareholders may be taken without a meeting if consents in writing, setting
forth the action so taken, are signed by all of the shareholders entitled to
vote with respect to the subject matter thereof. Such consents shall have the
same force and effect as a unanimous vote of the shareholders at a meeting duly
held. The Secretary shall file such consents with the minutes of the meetings of
the shareholders.
By-laws of HyperSolar, Inc.
2 -
1
Section
2.05 Notice; Waiver of
Notice
|
a)
|
Written
or printed notice of each meeting of the shareholders, whether annual or
special, stating the place, day, and hour of the meeting and, in case of a
special meeting, the purpose or purposes thereof, shall be delivered or
given to each shareholder entitled to vote at such meeting, as determined
in accordance with Section 6.05 of these By-laws, not less than 10 days or
more than 70 days before the date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the
officer or persons calling the meeting, unless, as to a particular matter,
other or further notice is required by law, in which case such other or
further notice shall be given.
|
|
b)
|
Any
notice to a shareholder of a shareholders’ meeting sent by mail shall be
deemed to be delivered when deposited in the United States mail with
postage thereon prepaid and addressed to the shareholder at such
shareholder’s address as it appears on the records of the
Corporation.
|
|
c)
|
Whenever
any notice is required to be given to any shareholder under the provisions
of these By-laws, or of the Articles of Incorporation or of any law, a
written waiver thereof, signed by the shareholder entitled to such notice,
whether before or after the time stated therein, shall be deemed
equivalent to the giving of such
notice.
|
|
d)
|
To
the extent provided by law, attendance of a shareholder at any meeting
shall constitute a waiver of notice of such meeting, except when a
shareholder attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
|
Section
2.06 Presiding
Officials
Every
meeting of the shareholders, for whatever purpose, shall be convened by the
President, the Secretary or the officer or any of the persons who called the
meeting. The meeting shall be presided over by the officers specified in Section
4.08 and Section 4.09 of these By-laws; provided, however, that the shareholders
at any meeting, by a majority vote of the shares represented, may select any
persons of their choosing to act as chairman and secretary of such meeting or
any session thereof.
Section
2.07 Quorum
Unless
otherwise provided by law, the Articles of Incorporation or these By-laws, a
majority of the outstanding shares entitled to vote at any meeting represented
in person or by proxy shall constitute a quorum at all meetings of the
shareholders; provided, however, that in the event that less than a quorum is
represented at a meeting, the shares so represented, by a majority vote, shall
have the right successively to adjourn the meeting, without notice to any
shareholder not present at the meeting, to a specified date no later than 90
days after such adjournment. In all matters every decision of a majority of
shares entitled to vote on the subject matter and represented in person or by
proxy at a meeting at which a quorum is present shall be valid as an act of the
shareholders, unless a larger vote is required by law, by the Articles of
Incorporation, or by these By-laws. At any subsequent session of an adjourned
meeting at which a quorum is present
in person or by proxy, any business may be transacted that could have been
transacted at the initial session of the meeting if a quorum had been
present.
By-laws of HyperSolar, Inc.
2 -
2
Section
2.08 Proxies; Voting
Trusts
At any
meeting of the shareholders every shareholder having the right to vote shall be
entitled to vote in person or by proxy executed in writing by such shareholder
or by such shareholder’s duly authorized attorney in fact. No proxy shall be
valid after 11 months from the date of its execution, unless otherwise provided
in the proxy.
Section
2.09 Voting
|
a)
|
Unless
otherwise provided in the Articles of Incorporation, each shareholder
shall have one vote for each share of stock entitled to vote under the
provisions of the Articles of Incorporation and that is registered in such
shareholder’s name on the books of the Corporation, but in the election of
directors cumulative voting shall prevail. Accordingly, each shareholder
shall have the right to cast as many votes in the aggregate as shall equal
the number of voting shares held by the shareholder in the Corporation,
multiplied by the number of directors to be elected at the election, and
may cast the whole number of such votes for one candidate or distribute
them among two or more candidates.
|
|
b)
|
No
person shall be admitted to vote on any shares of the Corporation
belonging or hypothecated to the
Corporation.
|
|
c)
|
If
the Board of Directors does not close the transfer books or set a record
date for the determination of its shareholders entitled to notice of, and
to vote at, a meeting of shareholders in accordance with Section 6.05 of
these By-laws, only those persons who are shareholders of record at the
close of business on the 20th day preceding the date of such meeting shall
be entitled to notice of, and to vote at, such meeting and any adjournment
of such meeting; except that, if prior to such meeting written waivers of
notice of such meeting are signed and delivered to the Corporation by all
of the shareholders of record at the time such meeting is convened, only
those persons who are shareholders of record at the time such meeting is
convened shall be entitled to vote at such meeting, and any adjournment
thereof.
|
Section
2.10Registered Shareholders
As
contemplated by the Articles of Incorporation, the term “shareholder” as used in
these Bylaws means a registered holder of shares of the Corporation;
provided, however, that if permitted by law:
|
a)
|
shares
standing in the name of another corporation, domestic or foreign, may be
voted by such officer, agent or proxy as the By-laws of such corporation
may prescribe, or, in the absence of such provision, as the board of
directors of such corporation may
determine;
|
By-laws of HyperSolar, Inc.
2 -
3
|
b)
|
shares
standing in the name of a deceased person may be voted by such person’s
personal representative, either in person or by
proxy;
|
|
c)
|
shares
standing in the name of a conservator or trustee may be voted by such
fiduciary, either in person or by proxy, but no conservator or trustee
shall be entitled, as such fiduciary, to vote shares held by such
conservator or trustee without a transfer of such shares into the name of
such conservator or trustee;
|
|
d)
|
shares
standing in the name of a receiver may be voted by such receiver, and
shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into such receiver’s name if
authority so to do be contained in an appropriate order of the court by
which such receiver was appointed;
and
|
|
e)
|
a
shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so
transferred.
|
Section
2.11 Shareholders’
Lists
|
a)
|
A
complete list of the shareholders entitled to vote at each meeting of the
shareholders, arranged in alphabetical order, with the address of and the
number of voting shares held by each, shall be prepared by the officer of
the Corporation having charge of the stock transfer books of the
Corporation, and shall, for a period of 10 days prior to the meeting, be
kept on file at the registered office of the Corporation in the State of
Nevada and shall at any time during the usual hours for business be
subject to inspection by any shareholder. Such list or a duplicate thereof
shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole
time of the meeting. The original share ledger or transfer book, or a
duplicate thereof kept in the State of Nevada, shall be prima facie
evidence as to who are the shareholders entitled to examine such list,
share ledger or transfer book, or to vote at any meeting of
shareholders.
|
|
b)
|
Failure
to comply with this Section 2.11 shall not affect the validity of any
action taken at any such meeting.
|
Section
2.12 Conduct of
Meetings
The date
and time of the opening and the closing of the polls for each matter upon which
the shareholders will vote at a meeting shall be announced at the meeting by the
person presiding over the meeting. The Board of Directors of the Corporation
may, to the extent not prohibited by law, adopt by resolution such rules and
regulations for the conduct of the meetings or any meeting of shareholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations, the chairman of the meeting of shareholders may prescribe such
rules, regulations, and procedures and do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations, or procedures, whether adopted by the Board or prescribed by
the chairman of the meeting, may, to the extent not prohibited by law, include,
without limitation, the following: (i) the establishment of an agenda
for the meeting; (ii) the maintenance of order at the meeting; (iii) limitations
on attendance at or participation in the meeting to shareholders of record of
the Corporation, their duly authorized proxies, and such other persons as shall
be determined; (iv) restrictions on entry to the meeting after a specified time;
and (v) limitations on the time allotted to questions or comments by
participants. Unless otherwise determined by the Board or the chairman of the
meeting, meetings of shareholders shall not be required to be held in accordance
with any rules of parliamentary procedure.
By-laws of HyperSolar, Inc.
2 -
4
Article
Three
Board
of Directors
Section
3.01 Number
Unless
and until changed as hereinafter provided, the number of directors to constitute
the Board of Directors shall be the same number as that provided for the first
Board in the Articles of Incorporation or, if not so provided, shall be the same
as the number of persons named by the incorporator to constitute the first Board
of the Corporation. Each director shall hold such office, unless sooner removed
or disqualified, until the next succeeding annual meeting or until such
director’s successor is duly elected and qualified or until such director’s
earlier resignation, disqualification or removal. The shareholders shall have
the power to change the number of directors by resolution adopted by the
affirmative vote of the lesser of (a) the holders of at least 90 percent of the
outstanding shares of stock entitled to vote thereon, or (b) all but two
shareholders of the Corporation; provided that if the Articles of Incorporation
or By-laws provide for cumulative voting in the election of directors, any such
reduction in the number of directors shall be deemed a removal of director(s)
and must comply with Section 3.11 of these By-laws.
Section
3.02 Powers of the
Board
The
property and business of the Corporation shall be controlled and managed by the
directors, acting as a Board of Directors. The Board shall have and is vested
with all powers and authority, except as may be expressly limited by law, the
Articles of Incorporation or these By-laws, to do or cause to be done any and
all lawful things for and on behalf of the Corporation, to exercise or cause to
be exercised any or all of its powers, privileges, and franchises, and to seek
the effectuation of its objects and purposes. As used in these By-laws, the
terms “whole Board,” “whole Board of Directors,” “full Board,” and “full Board
of Directors” mean the total number of directors that the Corporation would have
if the Board had no vacancies.
Section
3.03 Meetings of the Newly
Elected Board
The
members of each newly elected Board of Directors: (a) shall meet at such time
and place, either within or without the State of Nevada, as shall be suggested
or provided for by resolution of the shareholders at the meeting at which such
newly elected Board was elected, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present; or (b) if not so provided for by
resolution of the shareholders, or if a quorum shall not be present, may meet at
such time and place as shall be consented to in writing by a majority of the
newly elected directors, provided that written or printed notice of such meeting
shall be given to each of the other directors in the same manner as provided in
these By-laws with respect to the giving of notice for special meetings of the
Board except that it shall not be necessary to state the purpose of the meeting
in such notice; or (c) regardless of whether or not the time and place of such
meeting shall be provided for by resolution of the shareholders at the annual
meeting, may meet at such time and place as shall be consented to in writing by
all of the newly elected directors. Each
director of the Corporation, upon such director’s election, shall qualify by
accepting the office of director, and such director’s attendance at, or such
director’s written approval of the minutes of, any meeting of the Board
subsequent to such director’s election shall constitute such director’s
acceptance of such office; or such director may execute such acceptance by a
separate writing, which shall be placed in the minute book.
By-laws of HyperSolar, Inc.
3 -
1
Section
3.04 Notice of Meetings;
Waiver of Notice
(a) Regular
Meetings
Regular
meetings of the Board of Directors may be held without notice at such times and
places either within or without the State of Nevada as shall from time to time
be fixed by resolution adopted by the full Board. Any business may be transacted
at a regular meeting.
(b) Special
Meetings
Special
meetings of the Board of Directors may be called at any time by the executive
committee, the President, any Vice President, the Secretary, or at least
one-fifth of the directors. The place may be within or without the State of
Nevada as designated in the notice.
Written
or printed notice of each special meeting of the Board, stating the place, day
and hour of the meeting and the purpose or purposes thereof, shall be mailed to
each director at least three days before the day on which the meeting is to be
held, or shall be delivered to such director personally or sent to such director
by telegram at least two days before the day on which the meeting is to be held.
If mailed, such notice shall be deemed to be delivered when it is deposited in
the United States mail with postage thereon prepaid, addressed to the director
at such director’s residence or usual place of business. If given by telegraph,
such notice shall be deemed to be delivered when it is delivered to the
telegraph company. The notice may be given by any person having authority to
call the meeting.
Notice”
and “call” with respect to such meetings shall be deemed to be
synonymous.
(c) Waiver of
Notice
Whenever
any notice is required to be given to any director under the provisions of these
By-laws, or of the Articles of Incorporation or of any law, a waiver thereof in
writing signed by such director, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance of
a director at any meeting shall constitute a waiver of notice of the meeting,
except when a director attends such meeting for the express purpose of objecting
to the transaction of any business, because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or of any committee of
directors need be specified in the notice or waiver of notice of the meeting
unless so required by the Articles of Incorporation or these
By-laws.
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Section
3.05 Meetings by
Conference Telephone or Similar Communications Equipment
Unless
otherwise provided by the Articles of Incorporation, these By-laws, or by law,
members of the Board of Directors of the Corporation, or any committee
designated by the Board, may participate in a meeting of the Board or committee
by means of conference telephone or similar communications equipment whereby all
persons participating in the meeting can hear each other, and participation in a
meeting in such manner shall constitute presence in person at the
meeting.
Section
3.06 Action Without a
Meeting
Any
action that is required to be or may be taken at a meeting of the directors, or
of the executive committee or any other committee of the directors, may be taken
without a meeting if consents in writing, setting forth the action so taken, are
signed by all of the members of the Board of Directors or of the committee as
the case may be. The consents shall have the same force and effect as a
unanimous vote at a meeting duly held. The Secretary shall file such consents
with the minutes of the meetings of the Board or of the committee as the case
may be.
Section
3.07 Quorum
At all
meetings of the Board of Directors, a majority of the full Board shall, unless a
greater number as to any particular matter is required by law, the Articles of
Incorporation or these Bylaws, constitute a quorum for the transaction of
business. The act of a majority of the directors present at any meeting of the
Board at which a quorum is present shall be the act of the Board, unless the act
of a greater number is required by law, the Articles of Incorporation, or these
Bylaws.
Section
3.08 Vacancies
Unless
otherwise provided in the Articles of Incorporation, these By-laws- or by law,
vacancies on the Board of Directors and newly created directorships resulting
from any increase in the number of directors to constitute the Board may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, until the next election of directors by
the shareholders.
Section
3.09 Committees
The Board
of Directors may, by resolution or resolutions adopted by a majority of the
whole Board, designate two or more directors of the Corporation to constitute
one or more committees (including without limitation an executive committee).
Each committee, to the extent provided in these By-laws or in such resolution or
resolutions, shall have and may exercise all of the authority of the Board in
the management of the Corporation; provided, however, that the designation of
each such committee and the delegation thereto of authority shall not operate to
relieve the Board, or any member thereof, of any responsibility imposed upon it
or such member by law.
Each such
committee shall keep regular minutes of its proceedings, which minutes shall be
recorded in the minute book of the Corporation. The Secretary or an Assistant
Secretary of the Corporation may act as Secretary for each such committee if the
committee so requests.
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The
members of the executive committee shall be the President, plus four other
directors of the Corporation elected or appointed by a plurality vote of the
directors of the Corporation. Such four other directors shall be elected to hold
office, unless sooner removed, resigned or disqualified, for two (2) year terms
or until their successors are duly elected or appointed and qualified, with the
terms of two (2) of them expiring each year. Except to the extent from time to
time otherwise provided by the Board of Directors, the executive committee shall
have and may exercise the authority of the Board of Directors with respect to
the following:
|
(i)
|
Authorization
of any single capital expenditure up to such dollar amount as may be
designated from time to time by resolution or resolutions adopted by a
majority of the whole board;
|
|
(ii)
|
Hiring
and discharging of employees of the
Corporation;
|
|
(iii)
|
Oversight
of day to day operations of the Corporation;
and
|
|
(iv)
|
Additional
matters, if any, from time to time designated by resolution or resolutions
adopted by a majority of the whole
Board.
|
Section
3.10 Compensation of
Directors and Committee Members
Directors
and members of all committees shall not receive any stated salary for their
services as such, unless authorized by resolution of the Board of Directors.
Also, by resolution of the Board, a fixed sum and expenses of attendance, if
any, may be allowed for attendance at each regular or special meeting of the
Board or committee. Nothing herein contained shall be construed to preclude any
director or committee member from serving the Corporation in any other capacity
and receiving compensation therefor.
Section
3.11 Removal of
Directors
(a) By
the Shareholders
At a
meeting called expressly for such purpose, directors of the Corporation may be
removed in the manner provided in this Section 3.11. Such meeting shall be held
at the registered office or principal business office of the Corporation in the
State of Nevada or in the city or county in the State of Nevada in which the
principal business office of the Corporation is located. Unless the Articles of
Incorporation provide otherwise, one or more directors or the entire Board of
Directors may be removed, with or without cause, by a vote of the holders of a
majority of the shares then entitled to vote at an election of directors. If the
Articles of Incorporation or these By-laws provide for cumulative voting in the
election of directors and if less than the entire Board is to be removed, no one
of the directors may be removed if the votes cast against such director’s
removal would be sufficient to elect such person if then cumulatively voted at
an election of the entire Board, or, if there are classes of directors, at an
election of the class of directors of which such person is a part. Whenever the
holders of the shares of any class are entitled to elect one or more directors
by the provisions of the Articles of Incorporation, the provisions of this
Section 3.11 shall apply, in respect of the removal of a director or directors
so elected, to the vote of the holders
of the outstanding shares of that class and not to the vote of the outstanding
shares as a whole.
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(b) By the
Directors
Any
director of the Corporation may be removed for cause by action of a majority of
the entire Board of Directors if the director to be removed shall, at the time
of removal, fail to meet the qualifications (if any) stated in the Articles of
Incorporation or these By-laws for election as a director or shall be in breach
of any agreement between such director and the Corporation relating to such
director’s services as a director or employee of the Corporation. Notice of the
proposed removal shall be given to all directors of the Corporation prior to
action thereon.
Section
3.12 Resignations
Any
director may resign at any time upon written notice to the Corporation. Such
resignation shall take effect at the time specified therein or, if no time is
specified therein, upon receipt thereof by the Corporation, and unless otherwise
specified therein, the acceptance of such resignation by the Corporation shall
not be necessary to make such resignation effective.
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Article
Four
Officers
Section
4.01 Designations
The
officers of the Corporation shall be a President, one or more Vice Presidents, a
Secretary, and a Treasurer. The Board of Directors shall elect a President and
Secretary at its first meeting after each annual meeting of the shareholders.
The Board then, or from time to time, may also elect one or more of the other
prescribed officers as it shall deem advisable, but need not elect any officers
other than a President and a Secretary. The Board may, if it desires, elect or
appoint additional officers and may further identify or describe any one or more
of the officers of the Corporation.
The
officers of the Corporation need not be members of the Board of Directors. Any
two or more offices may be held by the same person.
An
officer shall be deemed qualified when such person enters upon the duties of the
office to which such person has been elected or appointed and furnishes any bond
required by the Board of Directors; but the Board may also require such person’s
written acceptance and promise faithfully to discharge the duties of such
office.
Section
4.02 Term of
Office
Each
officer of the Corporation shall hold such person’s office at the pleasure of
the Board of Directors or for such other period as the Board may specify at the
time of such person’s election or appointment, or until such person’s death,
resignation, disqualification, or removal by the Board, whichever first occurs.
In any event, each officer of the Corporation who is not reelected or
reappointed at the annual election of officers by the Board next succeeding such
person’s election or appointment shall be deemed to have been removed by the
Board, unless the Board provides otherwise at the time of such person’s election
or appointment.
Section
4.03 Other
Agents
The Board
of Directors from time to time may appoint such other agents for the Corporation
as the Board shall deem necessary or advisable, each of whom shall serve at the
pleasure of the Board or for such period as the Board may specify, and shall
exercise such powers, have such titles, and perform such duties as shall be
determined from time to time by the Board or by an officer empowered by the
Board to make such determinations.
Section
4.04 Removal
The
President or any member of the Executive Committee may be removed from office by
resolution adopted by a majority of the full Board of Directors whenever, in its
judgment, the best interests of the Corporation would be served thereby. Any
other officer or agent elected or appointed by the Board of Directors, and any
employee, may be removed or discharged by the Board whenever, in its judgment,
the best interests of the Corporation would be served thereby, but such
removal or discharge shall be without prejudice to the contract rights, if any,
of the person so removed or discharged.
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Section
4.05 Vacancies
A vacancy
in any office because of a person’s death, resignation, disqualification, or
removal by the Board, may be filled by the Board for the unexpired portion of
the term.
Section
4.06 Salaries and
Compensation
Salaries
and compensation of all elected officers of the Corporation shall be fixed,
increased, or decreased by the Board of Directors, but this power, except as to
the salary or compensation of the President, may, unless prohibited by law, be
delegated by the Board to the President or a committee. Salaries and
compensation of all appointed officers, agents and employees of the Corporation
may be fixed, increased, or decreased by the Board, but until action is taken
with respect thereto by the Board, the same may be fixed, increased, or
decreased by the President or by such other officer or officers as may be
empowered by the Board to do so.
Section
4.07 Delegation of
Authority to Hire, Discharge, and Designate Duties
The Board
of Directors from time to time may delegate to the President or other officer or
executive employee of the Corporation, authority to hire and discharge and to
fix and modify the duties and salary or other compensation of employees of the
Corporation under the jurisdiction of such person, and the Board may delegate to
such officer or executive employee similar authority with respect to obtaining
and retaining for the Corporation the services of attorneys, accountants, and
other experts.
Section
4.08 President
Unless
the Board of Directors otherwise provides, the President shall be the chief
executive officer of the Corporation with such general executive duties, powers,
responsibilities, and authority of supervision and management as are usually
vested in the office of the chief executive officer of a corporation, and the
President shall carry into effect all directions and resolutions of the Board.
Except as otherwise provided for in Section 2.06 of these By-laws, the President
shall preside at all meetings of the shareholders, the Board and the executive
committee.
The
President may execute all bonds, notes, debentures, mortgages and other
contracts requiring the seal of the Corporation, may cause the seal to be
affixed thereto, and may execute all other instruments, for and in the name of
the Corporation.
Unless
the Board of Directors otherwise provides, the President, or any person
designated in writing by the President, shall have full power and authority on
behalf of the Corporation to: (i) attend and to vote or take action at any
meeting of the holders of securities of corporations in which the Corporation
may hold securities, and at such meetings shall possess and may exercise any and
all rights and powers incident to being a holder of such securities; and (ii)
execute and deliver waivers of notice and proxies for and in the name of this
Corporation with respect to securities of any such corporation held by this
Corporation.
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The
President shall, unless the Board of Directors otherwise provides, be an ex
officio member of all standing committees.
The
President shall perform other duties and have other powers, responsibilities,
and authority as may be prescribed elsewhere in these By-laws or from time to
time by the Board of Directors.
Section
4.09 Vice
Presidents
In the
absence or disability of the President or in the event of the President’s
inability or refusal to act, any Vice President may perform the duties and
exercise the powers of the President, until the Board of Directors otherwise
provides. Vice Presidents shall perform such other duties and have such other
powers, responsibilities and authority as the Board may from time to time
prescribe.
Section
4.10 Secretary and
Assistant Secretaries
The
Secretary shall attend all meetings of the Board of Directors and, except as
otherwise provided for in Section 2.06 of these By-laws, all meetings of the
shareholders. The Secretary shall prepare minutes of all proceedings at such
meetings and shall preserve them in a minute book of the Corporation. The
Secretary shall perform similar duties for each standing or temporary committee
when requested by the Board or such committee.
The
Secretary shall see that all books, records, lists, and information, or
duplicates, required to be maintained at the registered or other office of the
Corporation in the State of Nevada, or elsewhere, are so
maintained.
The
Secretary shall keep in safe custody the seal, if any, of the Corporation, and
shall have authority to affix the seal of the Corporation to any instrument
requiring a corporate seal and, when so affixed, the Secretary may attest the
seal by the Secretary’s signature. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by such officer’s signature.
The
Secretary shall have the general duties, powers, responsibilities and authority
of a secretary of a corporation and shall perform such other duties and have
such other powers, responsibilities, and authority as may be prescribed
elsewhere in these By-laws or from time to time by the Board of Directors or the
chief executive officer of the Corporation, under whose direct supervision the
Secretary shall be.
In the
absence or disability of the Secretary or in the event of the Secretary’s
inability or refusal to act, any Assistant Secretary may perform the duties and
exercise the powers of the Secretary until the Board of Directors otherwise
provides. Assistant Secretaries shall perform such other duties and have such
other powers, responsibilities, and authority as the Board may from time to time
prescribe.
Section
4.11 Treasurer and
Assistant Treasurers
The
Treasurer shall have responsibility for the safekeeping of the funds and
securities of the Corporation, shall keep or cause to be kept full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall keep or cause to be kept all other books of
account and accounting records of the Corporation. The Treasurer shall deposit
or cause to be deposited all moneys and other valuable effects in the name and
to the credit of the Corporation in such depositories as may be designated by
the Board of Directors or by any officer of the Corporation to whom such
authority has been granted by the Board.
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The
Treasurer shall disburse, or permit to be disbursed, the funds of the
Corporation as may be ordered, or authorized generally, by the Board of
Directors, and shall render to the chief executive officer of the Corporation
and the directors, whenever they may require, an account of all transactions as
treasurer and of those under the Treasurer’s jurisdiction, and of the financial
condition of the Corporation.
The
Treasurer shall have the general duties, powers, responsibilities, and authority
of a treasurer of a corporation, and shall, unless otherwise provided by the
Board of Directors, be the chief financial and accounting officer of the
Corporation. The Treasurer shall perform such other duties and shall have such
other powers, responsibilities, and authority as may be prescribed elsewhere in
these By-laws or from time to time by the Board.
If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond in a sum and with one or more sureties satisfactory to the Board for the
faithful performance of the duties of the Treasurer’s office and for the
restoration to the Corporation, in the case of the Treasurer’s death,
resignation, retirement, or removal from office, of all books, papers, vouchers,
money, and other property of whatever kind in the Treasurer’s possession or
under the Treasurer’s control that belong to the Corporation.
In the
absence or disability of the Treasurer or in the event of the Treasurer’s
inability or refusal to act, any Assistant Treasurer may perform the duties and
exercise the powers of the Treasurer until the Board of Directors otherwise
provides. Assistant Treasurers shall perform such other duties and have such
other powers, responsibilities, and authority as the Board may from time to time
prescribe.
Section
4.12 Duties of Officers
May Be Delegated
If any
officer of the Corporation is absent or unable to act, or for any other reason
that the Board of Directors may deem sufficient, the Board may delegate, for the
time being, some or all of the functions, duties, powers, responsibilities, and
authority of any officer to any other officer, or to any other agent or employee
of the Corporation or other responsible person, provided a majority of the full
Board concurs.
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Article
Five
Indemnification
Section
5.01 Indemnification in
Actions by Third Parties
The
Corporation shall indemnify each person who has been 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, investigative, or
appellate (other than an action by or in the right of the Corporation) by reason
of the fact that such person is or was serving in an Indemnifiable Capacity
against all liabilities and expenses, including, without limitation, judgments,
amounts paid in settlement (provided that such settlement and all amounts paid
in connection therewith are approved in advance by the Corporation in accordance
with Section 5.04 of these By-laws, which approval shall not be unreasonably
withheld or delayed), attorneys’ fees, ERISA excise taxes or penalties, fines,
and other expenses actually and reasonably incurred by such person in connection
with such action, suit, or proceeding (including, without limitation, the
investigation, defense, settlement, or appeal of such action, suit, or
proceeding) if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful; provided,
however, that the Corporation shall not be required to indemnify or advance
expenses to any such person seeking indemnification or advancement of expenses
in connection with an action, suit, or proceeding initiated by such person
(including, without limitation, any cross-claim or counterclaim) unless the
initiation of such action, suit, or proceeding was authorized by the Board of
Directors of the Corporation. The termination of any such action, suit, or
proceeding by judgment, order, settlement, conviction, or under a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, that such person had
reasonable cause to believe that his conduct was unlawful.
Section
5.02 Indemnification in
Derivative Action
The
Corporation shall indemnify each person who has been or is a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was serving in an
Indemnifiable Capacity against amounts paid in settlement thereof (provided that
such settlement and all amounts paid in connection therewith are approved in
advance by the Corporation in accordance with Section 5.04 of these By-laws,
which approval shall not be unreasonably withheld or delayed) and all expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action, suit, or proceeding
(including without limitation the investigation, defense, settlement, or appeal
of such action, suit, or proceeding) if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification under this Section
5.02 shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence
or misconduct in the performance of such person’s duty to the Corporation unless
and only to the extent that the court in which the action, suit, or proceeding
is brought determines upon application that, despite the adjudication of
liability and in view of all the circumstances of such case, the person is
fairly and reasonably entitled to indemnity for such expenses that the court
shall deem proper.
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Section
5.03 Indemnification for
Success on the Merits or Otherwise
Notwithstanding
the other provisions of this Article Five, to the extent that a person who is or
was serving in an Indemnifiable Capacity has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in Section
5.01 or Section 5.02 of these Bylaws (including, without limitation, the
dismissal of any such action, suit, or proceeding without prejudice or, with the
prior approval of the Corporation in accordance with Section 5.04 of these
By-laws, the settlement of such action, suit, or proceeding without admission of
fault or liability), or in defense of any claim, issue, or matter therein, such
person shall be indemnified against any amounts that may be approved by the
Corporation to be paid in settlement of any such action, suit, or proceeding and
against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith.
Section
5.04 Determination of
Right to Indemnification
Prior to
indemnifying a person pursuant to the provisions of Section 5.01 or Section 5.02
of these By-laws, unless ordered by a court and except as otherwise provided by
Section 5.03 of these By-laws, the Corporation shall determine that such
indemnification is proper in the circumstances because such person has met the
specified standard of conduct entitling such person to indemnification as set
forth under Section 5.01 or Section 5.02 of these By-laws. Any determination
that a person shall or shall not be indemnified under the provisions of Section
5.01 or Section 5.02 of these By-laws shall be made: (a) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit, or proceeding; (b) if such quorum is not
obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or (c) by the
shareholders, and such determination shall be final and binding upon the
Corporation; provided, however, that in the event such determination is adverse
to the person to be indemnified hereunder, such person shall have the right to
maintain an action in any court of competent jurisdiction against the
Corporation to determine whether or not such person has met the requisite
standard of conduct and is entitled to such indemnification hereunder. For the
purposes of such court action, an adverse determination as to the eligibility of
a person for indemnification made pursuant to any of clauses (a), (b), or (c) of
this Section 5.04 shall not constitute a defense to such action nor create a
presumption regarding such person’s eligibility for indemnification hereunder.
If such court action is successful and the person is determined to be entitled
to such indemnification, such person shall be reimbursed by the Corporation for
all fees and expenses (including attorneys’ fees) actually and reasonably
incurred in connection with any such action (including, without limitation, the
investigation, defense, settlement, or appeal of such action).
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Section
5.05 Advancement of
Expenses
Expenses
(including attorneys’ fees) actually and reasonably incurred by a person who may
be entitled to indemnification hereunder in defending an action, suit, or
proceeding, whether civil, criminal, administrative, investigative, or
appellate, shall be paid by the Corporation in advance of the final disposition
of such action, suit, or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by or on behalf of such person
to repay such amount unless it shall ultimately be determined that such person
is entitled to indemnification by the Corporation. In no event shall any advance
be made in instances where it is reasonably determined that such person would
not be entitled to indemnification hereunder or that such person deliberately
breached his or her duty to the Corporation or its shareholders: (a) by the
Board by a majority vote of a quorum consisting of directors who were not
parties to the action, suit, or proceeding; (b) if such quorum is not
obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or (c) by the
shareholders, and such determination shall be final and binding upon the
Corporation.
Section
5.06 Non-Exclusivity
The
indemnification and the advancement of expenses provided by this Article Five
shall not be exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
the Articles of Incorporation, these By-laws or any agreement, vote of
shareholders or disinterested directors, policy of insurance, or otherwise, both
as to action in their official capacity and as to action in another capacity
while holding their respective offices, and shall not limit in any way any right
which the Corporation may have to make additional indemnifications with respect
to the same or different persons or classes of persons. The indemnification and
advancement of expenses provided by this Article Five shall continue as to a
person who has ceased to serve in an Indemnifiable Capacity and shall inure to
the benefit of the heirs, executors, and administrators of such a
person.
Section
5.07 Insurance
Upon
resolution passed by the Board of Directors, the Corporation may purchase and
maintain insurance on behalf of any person who is or was serving in an
Indemnifiable Capacity against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person’s
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article
Five.
Notwithstanding
anything in this Article Five to the contrary: (i) the Corporation shall not be
obligated to indemnify any person serving in an Indemnifiable Capacity for any
amounts that have been paid directly to such person by any insurance maintained
by the Corporation; and (ii) any indemnification provided pursuant to this
Article Five (A) shall not be used as a source of contribution to, or as a
substitute for, or as a basis for recoupment of any payments pursuant to, any
indemnification obligation or insurance coverage that is available from any
Other Enterprise, and (B) shall become operative, and payments shall be required
to be made thereunder, only in the event and to the extent that the amounts in
question have not been fully paid by any indemnification obligation or insurance
coverage that is available from any Other Enterprise.
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Section
5.08 Amendment and Vesting
of Rights
Notwithstanding
any other provision of these By-laws or of the Articles of Incorporation, the
terms and provisions of this Article Five may be amended or repealed and the
rights to indemnification, and advancement of expenses created hereunder may be
changed, altered, or terminated and, in certain circumstances specified in the
applicable laws of the State of Nevada relating to the indemnification of a
person serving in an Indemnifiable Capacity, only with the affirmative vote of
the holders of a majority of the outstanding shares of the Corporation entitled
to vote in the election of directors.
Section
5.09 Vesting of
Rights
The
rights granted or created hereby shall be vested in each person entitled to
indemnification hereunder as a bargained-for, contractual condition of such
person’s serving or having served in an Indemnifiable Capacity and, while this
Article Five may be amended or repealed, no such amendment or repeal shall
release, terminate, or adversely affect the rights of such person under this
Article Five with respect to any act taken or the failure to take any act by
such person prior to such amendment or repeal or with respect to any action,
suit, or proceeding with respect to such act or failure to act filed after such
amendment or repeal.
Section
5.10 Definitions
For
purposes of this Article Five, references to:
|
(i)
|
“the
Corporation” shall, unless otherwise determined by the Board of Directors,
include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger that, if its separate existence had
continued, would have had power and authority to indemnify a person who
serves in an Indemnifiable Capacity so that any person who is or was
serving in an Indemnifiable Capacity as to a constituent corporation shall
stand in the same position under the provisions of this Article Five with
respect to the resulting or surviving corporation as such person would if
such person had served the resulting or surviving corporation in the same
capacity;
|
|
(ii)
|
“Other
Enterprises” or “Other Enterprise” shall mean any other corporation,
partnership, limited liability company, joint venture, trust, employee
benefit plan, or similar
enterprise;
|
|
(iii)
|
“fines”
shall include any excise taxes assessed against a person with respect to
an employee benefit plan;
|
|
(iv)
|
“defense”
shall include investigations of any threatened, pending or completed
action, suit, or proceeding as well as appeals thereof and shall also
include any defensive assertion of a cross-claim or
counterclaim;
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(v)
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“serving
at the request of the Corporation” shall mean any service by a person in
an Indemnifiable Capacity that imposes duties on, or involves services by,
such person with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner “not opposed to the best interests of the Corporation” as
referred to in this Article Five;
and
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(vi)
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“Indemnifiable
Capacity” shall mean service by a person as a director or officer of the
Corporation or, at the Corporation’s request, service by a person as a
director, officer, trustee, or other comparable position of an Other
Enterprise.
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Section
5.11 Severability
If any
provision of this Article Five or the application of any such provision to any
person or circumstance is held invalid, illegal, or unenforceable for any reason
whatsoever, the remaining provisions of this Article Five and the application of
such provision to other persons or circumstances shall not be affected thereby
and, to the fullest extent possible, the court finding such provision invalid,
illegal, or unenforceable shall modify and construe the provision so as to
render it valid and enforceable as against all persons or entities and to give
the maximum possible protection to persons subject to indemnification hereby
within the bounds of validity, legality, and enforceability. Without limiting
the generality of the foregoing, if any person who is or was serving in an
Indemnifiable Capacity is entitled under any provision of this Article Five to
indemnification by the Corporation for some or a portion of the judgments,
amounts paid in settlement, attorneys’ fees, ERISA excise taxes or penalties,
fines, or other expenses actually and reasonably incurred by any such person in
connection with any threatened, pending, or completed action, suit, or
proceeding (including, without limitation, the investigation, defense,
settlement or appeal of such action, suit, or proceeding), whether civil,
criminal, administrative, investigative, or appellate, but not, however, for all
of the total amount thereof, the Corporation shall nevertheless indemnify such
person for the portion thereof to which such person is entitled.
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Article
Six
Stock
Section
6.01 Issuance and Payment
for Shares of Stock
The
Corporation shall not issue shares of stock of the Corporation, except by
resolution or resolutions authorizing such issuance adopted by the affirmative
vote of the lesser of (a) at least 90 percent of the whole Board, or (b) all but
two directors of the Corporation; and except for money paid, labor done, or
property actually received or in consideration of valid bona fide antecedent
debts. No note or obligation given by any shareholder, whether secured by deed
of trust, mortgage or otherwise, shall be considered as payment of any part of
any share or shares, and no loan of money for the purpose of such payment shall
be made by the Corporation.
Section
6.02 Certificates
Representing Shares of Stock
The
certificates representing shares of stock of the Corporation shall be issued in
numerical order and shall be in such form as may be prescribed by the Board of
Directors in conformity with law. The issuance of shares shall be entered in the
stock books of the Corporation as they are issued. Such entries shall show the
name and address of the person, firm, partnership, corporation, or association
to whom each certificate is issued. Each certificate shall have printed, typed,
or written thereon the name of the person, firm, partnership, corporation, or
association to whom it is issued and the number of shares represented thereby.
It shall be signed by the President or a Vice President and by the Secretary, an
Assistant Secretary, the Treasurer, or an Assistant Treasurer of the
Corporation, and sealed with the seal of the Corporation, if any. Any or all
signatures on such certificate may be facsimiles and the seal may be facsimile,
engraved, or printed. In case any such officer, transfer agent, or registrar who
has signed or whose facsimile signature has been placed upon any such
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, such certificate may nevertheless be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue.
Section
6.03 Transfers of Shares —
Transfer Agent — Registrar
Transfers
of shares of stock shall be made on the stock record or transfer books of the
Corporation only by the person named in the stock certificate, or by such
shareholder’s attorney lawfully constituted in writing, and upon surrender of
the certificate therefor. The stock record book and other transfer records shall
be in the possession of the Secretary or of a transfer agent for the
Corporation. The Corporation, by resolution of the Board of Directors, may from
time to time appoint a transfer agent and, if desired, a registrar, under such
arrangements and upon such terms and conditions as the Board deems advisable,
but until and unless the Board appoints some other person, firm, or corporation
as its transfer agent (and upon the revocation of any such appointment,
thereafter until a new appointment is similarly made) the Secretary of the
Corporation shall be the transfer agent of the Corporation without the necessity
of any formal action of the Board, and the Secretary, or any person designated
by the Secretary, shall perform all of the duties of such transfer
agent.
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Section
6.04 Transfers of Shares —
Restrictions
No
shareholder may sell, assign, transfer, give, donate, mortgage, alienate,
pledge, hypothecate, or in any way encumber or dispose of such shareholder’s
shares, fractional shares, and rights or options to purchase shares of stock of
the Corporation except to the extent permitted by law.
Section
6.05 Closing of Transfer
Books
The Board
of Directors shall have power to close the stock transfer books of the
Corporation for a period not exceeding 70 days preceding the date of any meeting
of the shareholders, or the date of payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares shall go into effect; provided, however, that in lieu of closing the
stock transfer books, the Board of Directors may fix in advance a date, not
exceeding 70 days preceding the date of any meeting of shareholders, or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of shares shall go into effect,
as a record date for the determination of the shareholders entitled to notice
of, and to vote at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend, or entitled to any such allotment of
rights, or entitled to exercise the rights in respect of any such change,
conversion, or exchange of shares. In such case only the shareholders who are
shareholders of record on the date of closing of the transfer books or on the
record date so fixed shall be entitled to notice of, and to vote at, such
meeting, and any adjournment thereof, or to receive payment of such dividend, or
to receive such 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 such date of closing of the transfer books or such record date fixed as
aforesaid.
Section
6.06 Lost or Destroyed
Certificates
In case
of the loss or destruction of any certificate for shares of stock of the
Corporation, another may be issued in its place upon proof of such loss or
destruction and upon the giving of a satisfactory bond of indemnity to the
Corporation and the transfer agent and registrar, if any, in such sum as the
Board of Directors may provide; provided, however, that a new certificate may be
issued without requiring a bond when in the judgment of the Board it is proper
to do so.
Section
6.07 Regulations
The Board
of Directors shall have power and authority to make all such rules and
regulations as it may deem expedient concerning the issue, transfer, conversion,
and registration of certificates for shares of stock of the Corporation, not
inconsistent with the laws of the State of Nevada, the Articles of
Incorporation, or these By-laws.
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Article
Seven
Corporate
Finance
Section
7.01 Fixing of Capital —
Transfers of Surplus
Except as
may be specifically otherwise provided in the Articles of Incorporation, the
Board of Directors is expressly empowered to exercise all authority conferred
upon it or the Corporation by any law or statute, and in conformity therewith,
relative to:
(i) determining
what part of the consideration received for shares of the Corporation shall be
stated capital;
(ii) increasing
or decreasing stated capital;
(iii) transferring
surplus to stated capital;
(iv) transferring
stated capital to surplus;
(v) determining
the consideration to be received by the Corporation for its shares;
and
(vi) determining
all similar or related matters;
provided,
however, that any concurrent action or consent by or of the Corporation and its
shareholders, required to be taken or given pursuant to law, shall be duly taken
or given in connection therewith.
Section
7.02 Dividends
Dividends
on the outstanding shares of the Corporation, subject to the provisions of the
Articles of Incorporation and any applicable law, may be declared by the Board
of Directors at any meeting. Dividends may be paid in cash, property, or shares
of the Corporation’s stock.
Liquidating
dividends or dividends representing a distribution of paid-in surplus or a
return of capital shall be made only when and in the manner permitted by
law.
A member
of the Board of Directors shall be fully protected in relying in good faith upon
the books of account of the Corporation or statements prepared by any of the
Corporation’s officials as to the value and amount of the assets, liabilities,
and earnings of the Corporation, or any facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be declared
and paid.
Section
7.03 Creation of
Reserves
Before
the payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time deems proper as a reserve fund or funds to meet contingencies
or for equalizing dividends, repairing or maintaining any property of the
Corporation, or any other purpose deemed by the Board to be conducive to the
interests of the Corporation, and the Board may abolish any such reserve in the
manner in which it was created.
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Article
Eight
General
Provisions
Section
8.01 Fiscal
Year
The Board
of Directors shall have power to fix and from time to time change the fiscal
year of the Corporation. In the absence of action by the Board, the fiscal year
of the Corporation shall end each year on March 31st.
Section
8.02 Corporate
Seal
The
Corporation may, but is not required, to have a corporate seal. The corporate
seal may be used by causing it, or a facsimile thereof, to be impressed or
affixed or in any manner reproduced.
Section
8.03 Depositories
The
moneys of the Corporation shall be deposited in the name of the Corporation in
such bank or banks or other depositories as the Board of Directors shall
designate, and shall be drawn out only by check or draft signed by persons
designated by resolution adopted by the Board. Notwithstanding the foregoing,
the Board may by resolution authorize an officer or officers of the Corporation
to designate any bank or banks or other depositories in which moneys of the
Corporation may be deposited, and to designate the persons who may sign checks
or drafts on any particular account or accounts of the Corporation, whether
created by direct designation of the Board or by an authorized officer or
officers as aforesaid.
Section
8.04 Contracts with
Officers or Directors or Their Affiliates
No
contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or any
committee thereof that authorizes the contract or transaction, or solely because
his, her, or their votes are counted for such purpose, if:
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(i)
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The
material facts as to such person’s relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors or such committee, and the Board or such committee in good faith
authorized the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
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(ii)
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The
material facts as to such person’s relationship or interest and as to the
contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders;
or
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(iii)
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The
contract or transaction is fair as to the Corporation as of the time it is
authorized or approved by the Board of Directors, a committee thereof, or
the shareholders.
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Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or a committee that authorizes the contract or
transaction.
Section
8.05 Amendments
Except as
may be specified in Article Five or this Section 8.05 of these By-laws, these
By-laws may from time to time be altered, amended, or repealed, or new By-laws
may be adopted, in the manner provided in the Articles of Incorporation or by
law. This Section 8.05 may not be altered, amended, repealed, or replaced
without the approval of at least 90 percent of the full Board of Directors (or
if less, all but two of the directors) or the holders of at least 90 percent of
the outstanding shares of stock of the Corporation entitled to vote thereon (or
if less, all but two of the stockholders). No provision of these By-laws
providing for the vote or action of greater than a majority of shareholders or
greater than a majority of directors may be altered, amended, repealed, or
replaced without the vote or action of such greater number of shareholders or
directors, as the case may be.
Section
8.06 Agreements Among
Shareholders
In the
event that any shareholders’ agreement or similar agreement is executed by all
shareholders who own stock in the Corporation at the date of such agreement and
contains provisions in conflict with these By-laws, these By-laws shall be
deemed automatically amended, to the extent in conflict with the provisions of
such agreement, by unanimous consent of the shareholders by virtue of the
existence of such agreement.
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Article
Nine
Certificate
The
undersigned Secretary of HyperSolar, Inc., a Nevada Corporation, hereby
certifies that the foregoing By-laws are the original By-laws of the
Corporation.
DATED,
this 20th day of February, 2009
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/s/
A.T. Mathis
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A.T.
Mathis, Secretary
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