Attached files
| file | filename |
|---|---|
| EX-10.2 - CONTINUING GUARANTEE - FITLIFE BRANDS, INC. | ex10-2.htm |
| EX-10.1 - MERCHANT AGREEMENT - FITLIFE BRANDS, INC. | ex10-1.htm |
| 8-K - CURRENT REPORT - FITLIFE BRANDS, INC. | ftlf8k.htm |
Exhibit
3.1
AMENDED AND RESTATED BYLAWS
of
FITLIFE BRANDS, INC.,
a Nevada corporation
TABLE OF CONTENTS
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE I - OFFICES
|
|
1
|
|
|
|
|
|
Section 1.1
|
PRINCIPAL OFFICE
|
1
|
|
Section 1.2
|
OTHER OFFICES
|
1
|
|
|
|
|
|
ARTICLE II - STOCKHOLDERS
|
|
1
|
|
|
|
|
|
Section 2.1
|
ANNUAL MEETING
|
1
|
|
Section 2.2
|
SPECIAL MEETINGS
|
1
|
|
Section 2.3
|
PLACE OF MEETINGS
|
1
|
|
Section 2.4
|
NOTICE OF MEETINGS; WAIVER OF NOTICE
|
2
|
|
Section 2.5
|
DETERMINATION OF STOCKHOLDERS OF RECORD
|
3
|
|
Section 2.6
|
QUORUM; ADJOURNED AND RECONVENED MEETINGS
|
3
|
|
Section 2.7
|
VOTING
|
4
|
|
Section 2.8
|
PROXIES
|
5
|
|
Section 2.9
|
ACTION WITHOUT A MEETING
|
5
|
|
Section 2.10
|
ORGANIZATION
|
5
|
|
Section 2.11
|
ADVANCE NOTICE OF BUSINESS
|
6
|
|
|
|
|
|
ARTICLE III - DIRECTORS
|
|
7
|
|
|
|
|
|
Section 3.1
|
GENERAL POWERS; PERFORMANCE OF DUTIES
|
7
|
|
Section 3.2
|
NUMBER, TENURE, AND QUALIFICATIONS
|
7
|
|
Section 3.3
|
ADVANCE NOTICE FOR NOMINATION OF DIRECTORS
|
8
|
|
Section 3.4
|
CHAIRMAN OF THE BOARD
|
8
|
|
Section 3.5
|
ANNUAL AND REGULAR MEETINGS
|
8
|
|
Section 3.6
|
SPECIAL MEETINGS
|
8
|
|
Section 3.7
|
PLACE OF MEETINGS
|
8
|
|
Section 3.8
|
NOTICE OF MEETINGS
|
8
|
|
Section 3.9
|
QUORUM; ADJOURNED AND RECONVENED MEETINGS
|
9
|
|
Section 3.10
|
MANNER OF ACTING; PRESUMPTION OF ASSENT
|
9
|
|
Section 3.11
|
TELEPHONIC MEETINGS
|
9
|
|
Section 3.12
|
ACTION WITHOUT MEETING
|
9
|
|
Section 3.13
|
POWERS AND DUTIES
|
9
|
|
Section 3.14
|
COMMITTEES
|
10
|
|
Section 3.15
|
COMPENSATION
|
11
|
|
Section 3.16
|
ORGANIZATION
|
11
|
|
Section 3.17
|
ADVISORY PANELS
|
11
|
|
|
|
|
|
ARTICLE IV - OFFICERS
|
|
11
|
|
|
|
|
|
Section 4.1
|
ELECTION
|
11
|
|
Section 4.2
|
REMOVAL; RESIGNATION
|
11
|
|
Section 4.3
|
VACANCIES
|
12
|
|
Section 4.4
|
CHIEF EXECUTIVE OFFICER
|
12
|
|
Section 4.5
|
PRESIDENT
|
12
|
|
Section 4.6
|
CHIEF FINANCIAL OFFICER
|
12
|
|
Section 4.7
|
VICE PRESIDENTS
|
12
|
|
Section 4.8
|
SECRETARY
|
12
|
|
Section 4.9
|
ASSISTANT SECRETARIES
|
13
|
|
Section 4.10
|
TREASURER
|
13
|
|
Section 4.11
|
ASSISTANT TREASURERS
|
13
|
|
Section 4.12
|
EXECUTION OF NEGOTIABLE INSTRUMENTS, DEEDS AND
CONTRACTS
|
13
|
|
|
|
|
|
ARTICLE V - CAPITAL STOCK
|
|
14
|
|
|
|
|
|
Section 5.1
|
ISSUANCE
|
14
|
|
Section 5.2
|
STOCK CERTIFICATES AND UNCERTIFICATED SHARES
|
14
|
|
Section 5.3
|
SURRENDERED; LOST OR DESTROYED CERTIFICATES
|
14
|
|
Section 5.4
|
REPLACEMENT CERTIFICATE
|
15
|
|
Section 5.5
|
TRANSFER OF SHARES
|
15
|
|
Section 5.6
|
TRANSFER AGENT; REGISTRARS
|
15
|
|
Section 5.7
|
MISCELLANEOUS
|
15
|
|
|
|
|
|
ARTICLE VI - DISTRIBUTIONS
|
|
16
|
|
|
|
|
|
ARTICLE VII - RECORDS; REPORTS; SEAL; AND FINANCIAL
MATTERS
|
16
|
|
|
|
|
|
|
Section 7.1
|
RECORDS.
|
16
|
|
Section 7.2
|
CORPORATE SEAL
|
16
|
|
Section 7.3
|
FISCAL YEAR-END
|
16
|
|
|
|
|
|
ARTICLE VIII - INDEMNIFICATION
|
|
16
|
|
|
|
|
|
Section 8.1
|
INDEMNIFICATION AND INSURANCE
|
16
|
|
Section 8.2
|
AMENDMENT
|
18
|
|
|
|
|
|
ARTICLE IX - CHANGES IN NEVADA LAW
|
|
18
|
|
|
|
|
|
ARTICLE X - AMENDMENT OR REPEAL OF BYLAWS
|
19
|
|
|
|
|
|
|
ARTICLE XI - FORUM SELECTION
|
|
19
|
|
|
|
|
|
ARTICLE XII - CONTROL SHARE LAW
OPT-OUT
|
19
|
|
AMENDED AND RESTATED BYLAWS
of
FITLIFE BRANDS, INC.,
a Nevada corporation
ARTICLE
I - OFFICES
The
principal office
and place of business of FITLIFE BRANDS, INC. (the
“Corporation”)
shall be at 5214 S. 136th Street,
Omaha, Nebraska 68137, or at such other location within or
outside the State of Nevada as determined from time to time by
resolution of the board of directors of the Corporation (the
“Board”).
Other
offices and places of business either within or outside the State
of Nevada may be established from time to time by resolution of the
Board or as the business of the Corporation may require. The
Corporation’s registered agent and the street address of the
Corporation’s registered agent in Nevada shall be as
determined by the Board from time to time.
ARTICLE
II - STOCKHOLDERS
The
annual meeting of the stockholders of the Corporation shall be held
on such date and at such time as designated from time to time by
the Board and stated in the notice of meeting. At each annual
meeting, the stockholders shall elect directors of the Corporation
to fill directorships the terms of which expire on the date of such
annual meeting (or which ended before such date but as to which the
Board did not fill the vacancy) and may transact any other business
that is properly brought before the meeting.
(a)
Subject to
the rights of the holders of any outstanding series of preferred
stock, and to the requirements of applicable law, special meetings
of stockholders, for any purpose or purposes, may be called only by
the Chairman of the Board, Chief Executive Officer, or the Board
pursuant to a resolution adopted by a majority of the directors
appointed and serving on the Board at such time. Special meetings
of stockholders shall be held at such place and time and on such
date as determined by the Board and stated in the
Corporation’s notice of the meeting or, if not so determined
by the Board, by the person(s) who duly called such
meeting
(b) No business shall
be acted upon at a special meeting of stockholders except as set
forth in the notice of the meeting or matters incident to the
conduct of the meeting as the presiding officer of the meeting
determines to be appropriate.
If the
place of any meeting of stockholders, the Board or its committee
for which notice is required under these Bylaws is not designated
in the notice of such meeting, such meeting shall be held at the
principal business office of the Corporation.
-1-
(a) Notice of each
stockholders meeting stating the place, if any, date, and time of
the meeting, and the means of remote communication, if any, by
which stockholders and proxy holders may be deemed present in
person and may vote at such meeting, shall be given in the manner
permitted by this Section
2.4 to each stockholder entitled to vote thereat by the
Corporation not less than ten nor more than 60 days before the date
of the meeting. If such notice is for a stockholder's meeting other
than an annual meeting, it shall also state the purpose or purposes
for which the meeting is called, and the business transacted at
such meeting shall be limited to the matters so stated in such
notice of meeting (or any supplement thereto).
Any
meeting of stockholders as to which notice has been given may be
postponed, and any special meeting of stockholders as to which
notice has been given may be cancelled, by the Board upon public
announcement (as defined in Section 2.11(c)) given before
the date then scheduled for such meeting. The notice shall contain
or be accompanied by any such additional information required by
the Nevada Revised Statutes (“NRS”).
(b) Whenever under
applicable law, the Corporation’s articles of incorporation,
as they may be amended and restated from time to time (the
“Articles of
Incorporation”), or these Bylaws notice is required to
be given to any stockholder, such notice may be given (i) in
writing and sent either by hand delivery, through the United States
mail, or by a nationally recognized overnight delivery service for
next day delivery, or (ii) by means of a form of electronic
transmission consented to by the stockholder, to the extent
permitted by, and subject to the conditions set forth in Section
78.370 of the NRS (or any successor statute). A notice to a
stockholder shall be deemed given as follows: (i) if given by hand
delivery, when actually received by the stockholder, (ii) if sent
through the United States mail, when deposited in the United States
mail, postage and fees prepaid, addressed to the stockholder at the
stockholder’s address appearing on the stock ledger of the
Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such
service, with fees prepaid, addressed to the stockholder at the
stockholder’s address appearing on the stock ledger of the
Corporation, and (iv) if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given and
otherwise meeting the requirements set forth above, (A) if by
facsimile transmission, when directed to a number at which the
stockholder has consented to receive notice, (B) if by email, when
directed to an email address at which the stockholder has consented
to receive notice, (C) if by a posting on an electronic network
together with separate notice to the stockholder of such specified
posting, upon the later of (i) such posting and (ii) the giving of
such separate notice, and (D) if by any other form of electronic
transmission, when directed to the stockholder. A stockholder may
revoke consent to receiving notice by means of electronic
communication by giving written notice of such revocation to the
Corporation. Any such consent shall be deemed revoked if (1) the
Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with
such consent, and (2) such inability becomes known to the Secretary
or an Assistant Secretary or to the Corporation’s transfer
agent, or other person responsible for the giving of notice;
provided, however, the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action.
“Electronic
transmission” means any form of communication, not
directly involving the physical transmission of paper, that creates
a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper
form by such a recipient through an automated process, including
transmission by facsimile telecommunication or email.
-2-
(a) For the purpose of
determining the stockholders entitled to notice of and to vote at
any meeting of stockholders or any adjournment or reconvening
thereof, or entitled to receive payment of any distribution or the
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of stock or for the
purpose of any other lawful action, the directors may fix, in
advance, a record date, which shall not be more than 60 days nor
less than ten days before the date of such meeting, if
applicable.
(b) If no record date
is fixed, the record date for determining stockholders: (i)
entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the day immediately preceding
the day on which notice is given, or, if notice is waived, at the
close of business on the day immediately preceding the day on which
the meeting is held; and (ii) for any other purpose shall be at the
close of business on the day on which the Board adopts the
resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at any meeting of
stockholders shall apply to any adjournment or reconvening of the
meeting; provided, however, that the Board may fix a new record
date for the adjourned or reconvened meeting and must fix a new
record date if the meeting is adjourned and reconvened to a date
more than 60 days later than the date set for the original
meeting.
(a) Unless the Articles
of Incorporation provide for a different proportion, stockholders
holding at least a majority of the voting power of the
Corporation’s capital stock, represented in person or by
proxy (regardless of whether the proxy has authority to vote on all
matters), are necessary to constitute a quorum for the transaction
of business at any meeting. If, on any issue, voting by classes or
series is required by the NRS, the Articles of Incorporation or
these Bylaws, at least a majority of the voting power, represented
in person or by proxy (regardless of whether the proxy has
authority to vote on all matters), within each such class or series
is necessary to constitute a quorum of each such class or
series.
(b) If a quorum is not
represented, the person presiding at the meeting may adjourn the
meeting from time to time until a quorum is represented, at which
time the meeting may be reconvened. At any such adjourned and
reconvened meeting at which a quorum is represented, any business
may be transacted which might have been transacted as originally
called. When a stockholders’ meeting is adjourned to another
time or place hereunder, notice need not be given of the reconvened
meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. However, if a new record date is
fixed for the reconvened meeting, notice of the reconvened meeting
must be given to each stockholder of record as of the new record
date. The stockholders present at a duly convened meeting at which
a quorum is present may continue to transact business until
adjournment, notwithstanding the departure of enough stockholders
to leave less than a quorum of the voting power.
-3-
Section
2.7 VOTING
(a) Unless otherwise
provided in the NRS, in the Articles of Incorporation, or in the
resolution providing for the issuance of preferred stock adopted by
the Board pursuant to authority expressly vested in it by the
Articles of Incorporation (if any such authority is so vested),
each stockholder of record, or such stockholder’s duly
authorized proxy, shall be entitled to one vote for each share of
voting stock registered in such stockholder’s name at the
close of business on the record date.
Notwithstanding
anything to the contrary contained herein and except for the
Corporation’s shares held by the Corporation in a fiduciary
capacity, the Corporation shall not vote, directly or indirectly,
shares of its own stock owned by it; and such shares shall not be
counted in determining the total number of outstanding shares
entitled to vote.
If any
holder votes any of such stockholder’s shares affirmatively
and fails to specify the number of affirmative votes, it will be
conclusively presumed that the holder is casting affirmative votes
with respect to all shares held.
With
respect to shares standing of record in the name of two or more
persons, whether fiduciaries, members of a partnership, joint
tenants, tenants-in-common, husband and wife as community property,
tenants by the entirety, voting trustees or otherwise and shares
held by two or more persons (including proxy holders) having the
same fiduciary relationship in respect to the same shares, (unless
the Secretary is given timely written notice to the contrary
accompanied by a copy of the governing instrument or order) votes
may be cast in the following manner:
If only
one person votes, the vote of such person binds all.
If more
than one person casts votes, the act of the majority so voting
binds all.
If more
than one person casts votes, but the vote is evenly split on a
particular matter, the votes shall be deemed cast proportionately,
as split.
(b) Subject to the
rights of the holders of one or more series of preferred stock of
the Corporation, voting separately by class or series, to elect
directors pursuant to the terms of one or more series of preferred
stock, the election of directors shall be determined by a plurality
of the votes cast by the stockholders present in person or
represented by proxy at the meeting and entitled to vote thereon.
All other matters shall be determined by a majority of the votes
cast by the stockholders present in person or represented by proxy
at the meeting and entitled to vote thereon, unless the matter is
one upon which, by applicable law, the Articles of Incorporation,
these Bylaws, or applicable stock exchange rules, a different vote
is required, in which case such provision shall govern and control
the decision of such matter.
-4-
(c) In determining the
right to vote shares of the Corporation pursuant to this
Section or
otherwise, the Corporation may rely on any instruments or
statements presented to it, provided that the Corporation has the
right, but not the obligation, to require and review such proof of
ownership and voting rights as it determines in good faith. The
Corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the Secretary or other officer or agent authorized
to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the
signatory’s authority to sign for the stockholder. All
decisions of the Corporation shall be valid and binding unless and
until a court of competent jurisdiction determines
otherwise.
Each
stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a
meeting (if ever so permitted by applicable law, the Articles of
Incorporation or these Bylaws) may authorize another person or
persons to act for such stockholder by proxy, but no such proxy
shall be voted or acted upon after six months from its date, unless
the proxy provides for a longer period which shall not exceed seven
years. Proxies need not be filed with the Secretary until the
meeting is called to order, but shall be filed with the Secretary
before being voted. Without limiting the manner in which a
stockholder may authorize another person or persons to act for such
stockholder as proxy, either of the following shall constitute a
valid means by which a stockholder may grant such
authority.
(a) A stockholder may
execute a writing authorizing another person or persons to act as
proxy. Execution may be accomplished by the stockholder or such
stockholder’s authorized officer, director, employee or agent
signing such writing or causing such person’s signature to be
affixed to such writing by any reasonable means, including by
facsimile signature.
(b) A stockholder may
authorize another person or persons to act as proxy by transmitting
or authorizing the transmission of an electronic transmission to
the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such electronic
transmission must either set forth or be submitted with information
from which it can be determined that the electronic transmission
was authorized by the stockholder.
Any
copy, facsimile transmission or other reliable reproduction of the
writing or transmission authorizing another person or persons to
act as proxy for a stockholder may be substituted or used in lieu
of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used;
provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire
original writing or transmission.
Section 2.9
ACTION WITHOUT A
MEETING
Any
action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if one or more consents
in writing, setting forth the action, shall be signed by the
holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote thereon
were present and voted. If written consents of less than all the
shareholders have been obtained, notice of such shareholder
approval by written consent shall be given at least ten (10) days
before the consummation of the action authorized by such written
consent to those shareholders entitled to vote who have not
consented in writing and to any non-voting shareholders. Such
notice shall contain or be accompanied by the same material that
would have been required if a formal meeting had been called to
consider the action. A consent signed under this section has the
effect of a vote at a meeting and may be described as such in any
document.
(a) Meetings of
stockholders shall be presided over by the Chairman of the Board,
or, in the absence of the Chairman of the Board, by the Chief
Executive Officer, or in the absence of the Chief Executive
Officer, the President, or, in the absence of the foregoing
persons, by a chairman designated by the Board. The Secretary, or
in the absence of the Secretary an Assistant Secretary, shall act
as Secretary of the meeting, but in the absence of the Secretary
and any Assistant Secretary, the chairman of the meeting may
appoint any person to act as Secretary of the meeting. The order of
business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of the meeting, including the
establishment of procedures for the maintenance of order and
safety, limitation on the time allotted to questions or comments on
the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and
the opening and closing of the voting.
-5-
(b) The Board may, and
shall if required by law, in advance of any meeting of
stockholders, appoint one or more persons as inspectors of
election, who may be employees of the Corporation or serve the
Corporation in other capacities, to act at such meeting or any
adjournment and reconvening thereof and to make a written report
thereof. The Board may appoint one or more persons as alternate
inspectors to replace any inspector who fails to act. If no
inspectors of election or alternates are appointed by the Board,
the chairman of the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before discharging his or her
duties, shall take an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
or her ability. The inspectors shall ascertain and report the
number of outstanding shares and the voting power of each;
determine the number of shares present in person or represented by
proxy at the meeting and the validity of proxies and ballots; count
all votes and ballots and report the results; determine and retain
for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and certify
their determination of the number of shares represented at the
meeting and their count of all votes and ballots. No person who is
a candidate for an office at an election may serve as an inspector
at such election. Each report of an inspector shall be in writing
and signed by the inspector or by a majority of them if there is
more than one inspector acting at such meeting. If there is more
than one inspector, the report of a majority shall be the report of
the inspectors.
(a) No business may be
transacted at an annual meeting of stockholders, other than
business that is either (i) specified in the Corporation’s
notice of meeting (or any supplement thereto) given by or at the
direction of the Board, (ii) otherwise properly brought before the
annual meeting by or at the direction of the Board, or (iii)
otherwise properly brought before the annual meeting by any
stockholder of the Corporation (x) who is a stockholder of record
on the date of the giving of the notice provided for in this
Section 2.11(a) and
on the record date for the determination of stockholders entitled
to vote at such annual meeting, and (y) who complies with the
notice procedures set forth in this Section 2.11(a).
Notwithstanding anything in this Section 2.11(a) to the
contrary, only persons nominated for election as a director to fill
any directorship the term of which expires on the date of the
annual meeting (or which ended before such date but as to which the
Board did not fill the vacancy) pursuant to Section 3.3 will be considered
for election at such meeting.
(i) In addition to any
other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary and such business must
otherwise be a proper matter for stockholder action. Subject to
Section
2.11(a)(iii), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must be received by
the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th day, and not
earlier than the opening of business on the 120th day, before the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that if the annual meeting is
called for a date that is not within 45 days before or after such
anniversary date, notice by the stockholder to be timely must be so
received not earlier than the opening of business on the
120th day
before the meeting and not later than the later of (x) the close of
business on the 90th day before the
meeting or (y) the close of business on the tenth day following the
day on which public announcement of the date of the annual meeting
is first made by the Corporation.
(ii) Tobe
in proper written form, a stockholder’s notice to the
Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to
bring before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting, the text
of the proposal or business (including the text of any resolutions
proposed for consideration and in the event such business includes
a proposal to amend these Bylaws, the language of the proposed
amendment) and the reasons for conducting such business at the
annual meeting, (B) the name and record address of such stockholder
and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (C) the class or series and number of
shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and by the
beneficial owner, if any,on whose behalf the proposal is made, (D)
a description of all arrangements or understandings between such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made and any other person or persons (including their
names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in
such business, (F) a representation that such stockholder intends
to appear in person or by proxy at the annual meeting to bring such
business before the meeting, and (G) any other information that is
required to be provided by the shareholder pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended,
(“Exchange
Act”), in his or her capacity as a proponent to a
shareholder proposal. Notwithstanding the foregoing, in order to
include information with respect to a shareholder proposal in the
proxy statement and form of proxy for a shareholders’
meeting, shareholders must provide notice as required by the
regulations promulgated under the Exchange Act. All references in
these Bylaws to “beneficial” ownership of stock,
or stock “beneficially” owned, or words of
similar import, incorporate by reference the standards for
determining beneficial ownership as set forth in Rule 13d-3 (or any
successor rule or regulation) under the Exchange Act.
-6-
(iii) The
foregoing notice requirements of this Section 2.11(a) shall be deemed
satisfied by a stockholder as to any proposal (other than
nominations) if the stockholder has notified the Corporation of
such stockholder’s intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor rule
or regulation) under the Exchange Act, and such stockholder has
complied with the requirements of such Rule for inclusion of such
proposal in a proxy statement prepared by the Corporation to
solicit proxies for such annual meeting. No business shall be
conducted at the annual meeting of stockholders except business
brought before the annual meeting in accordance with the procedures
set forth in this Section
2.11(a). If the Board or the chairman of the annual meeting
determines that any stockholder proposal was not made in accordance
with the provisions of this Section 2.11(a) or that the
information provided in a stockholder’s notice does not
satisfy the information requirements of this Section 2.11(a), such proposal
shall not be presented for action at the annual meeting.
Notwithstanding the foregoing provisions of this Section 2.11(a), if the
stockholder (or a qualified representative of the stockholder) does
not appear at the annual meeting of stockholders of the Corporation
to present the proposed business, such proposed business shall not
be transacted, notwithstanding that proxies in respect of such
matter may have been received by the Corporation.
(iv) In
addition to the provisions of this Section 2.11(a), a stockholder
shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 2.11(a) shall affect
any rights of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
(b) Only such business
shall be conducted at a special meeting of stockholders as has been
brought before the meeting pursuant to the Corporation’s
notice of meeting. Nominations of persons for election to the Board
may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation’s notice of
meeting only pursuant to Section 3.3.
(c) For purposes of
these Bylaws, “public
announcement” means disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
ARTICLE
III - DIRECTORS
The
business and affairs of the Corporation shall be managed by or
under the direction of the Board, except as otherwise provided in
NRS Chapter 78 or the Articles of Incorporation.
The
number of directors of the Corporation, other than any directors
who are elected by the holders of one or more series of preferred
stock voting separately by class or series, shall be fixed from
time to time exclusively by the Board pursuant to a resolution
adopted by a majority of the directors appointed and serving on the
Board at such time. Each director shall hold office until his or
her successor has been elected or appointed and qualified or until
his or her earlier death, retirement, disqualification, resignation
or removal. No reduction of the number of directors shall have the
effect of removing any director prior to the expiration of his or
her term of office. No provision of this Section shall restrict the
right of the Board to fill vacancies or the right of the
stockholders to remove directors as is hereinafter
provided.
-7-
Section
3.3 ADVANCE NOTICE FOR
NOMINATION OF DIRECTORS
No
shareholder shall be permitted to nominate a candidate for election
as a director at any annual meeting, unless such shareholder shall
provide in writing, not later than one hundred twenty (120) days
before the first anniversary of the preceding annual meeting of the
shareholder to the nominating committee of the Board of Directors
or, in the absence of such committee, to the Secretary of the
Corporation, information about such candidate which, were such
candidate a nominee for the Board of Directors from whom the
Corporation solicited proxies, would be required to be disclosed in
the proxy materials pursuant to which such proxies would be
solicited as set forth in Items 7-8 of Schedule 14A promulgated by
the Securities and Exchange Commission, or any successor
provisions.
The
Board shall elect a Chairman of the Board from the members of the
Board, who shall preside at all meetings of the Board and
stockholders at which he or she is present and shall have and may
exercise such powers (if any) as, from time to time, are assigned
to him or her by the Board, these Bylaws or as may be provided by
law.
Immediately
following the adjournment of, and at the same place as, the annual
or any special meeting of stockholders at which directors are
elected, the Board, including directors newly elected, shall hold
its annual meeting without call or notice, other than this
provision, to elect officers and to transact such further business
as is necessary or appropriate. The Board may provide by resolution
the place, date, and time for holding regular meetings between
annual meetings.
Special
meetings of the Board may be called by the Chairman of the Board or
by two or more directors of the Corporation or by the Chief
Executive Officer.
Any
regular or special meeting of the Board may be held at such place
as the Board designates, or in the absence of such designation, as
the notice calling such meeting so designates. A waiver of notice
signed by the directors may designate any place for the holding of
such meeting.
Except
as provided in Section
3.7, there shall be delivered to each director at the
address appearing for him or her on the records of the Corporation,
at least 24 hours before the time of such meeting, a written notice
of such meeting (a) by delivery of such notice personally, (b) by
mailing such notice postage prepaid, (c) by facsimile, (d) by
overnight courier, (e) by electronic transmission or electronic
writing, including email. If mailed to an address inside the United
States, the notice shall be deemed delivered two business days
following the date it is deposited in the United States mail,
airmail postage prepaid. If mailed to an address outside the United
States, the notice shall be deemed delivered four business days
following the date it is deposited in the United States mail,
airmail postage prepaid. If sent via facsimile, by electronic
transmission or electronic writing, including email, the notice
shall be deemed delivered upon the sender’s receipt of
confirmation of successful transmission. If sent via overnight
courier, the notice shall be deemed delivered the business day
following the delivery of such notice to the courier. If the
address of any director is incomplete or does not appear in the
records of the Corporation it will be sufficient to address any
notice to such director at the registered office of the
Corporation. Any director may waive notice of any meeting, and the
attendance of a director at a meeting and oral consent entered in
the minutes of such meeting shall constitute waiver of notice of
the meeting unless such director objects, prior to the transaction
of any business, that the meeting was not lawfully called, noticed
or convened. Attendance for the express purpose of objecting to the
transaction of business thereat because the meeting was not
properly called or convened shall not constitute presence or a
waiver of notice for purposes hereof. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
of the Board need be specified in the notice or waiver of notice of
such meeting.
-8-
Section
3.9 QUORUM; ADJOURNED
AND RECONVENED MEETINGS
(a) A majority of the
directors in office, at a meeting duly assembled, is necessary to
constitute a quorum for the transaction of business.
(b) At any meeting of
the Board where a quorum is not present, a majority of those
present may adjourn and reconvene, from time to time, until a
quorum is present, and no notice of such adjournment or reconvening
shall be required. After adjournment, at any reconvened meeting
where a quorum is present, any business may be transacted which
could have been transacted at the meeting originally
called.
The
affirmative vote of a majority of the directors present at a
meeting at which a quorum is present is the act of the Board. A
director who is present at a meeting of the Board at which action
on any corporate matter is taken shall be presumed to have assented
to the action unless his dissent or abstention is entered in the
minutes of the meeting or unless he files his written dissent or
abstention with the person acting as Secretary of the meeting
before the adjournment thereof or forwards any dissent or
abstention by certified or registered mail to the Secretary
promptly after the adjournment of the meeting. Such right to
dissent or abstain shall not apply to a director who voted in favor
of such action.
Members
of the Board or of any committee designated by the Board may
participate in a meeting of the Board or such committee by means of
a telephone conference, video conference, or similar method of
communication by which all persons participating in such meeting
can hear each other. Participation in a meeting pursuant to this
Section 3.11
constitutes presence in person at the meeting.
Any
action required or permitted to be taken at a meeting of the Board
or of a committee thereof may be taken without a meeting if, before
or after the action, a written consent thereto is signed by all of
the members of the Board or the committee. The written consent may
be signed in counterparts, including facsimile counterparts, and
shall be filed with the minutes of the proceedings of the Board or
committee.
(a) Except as otherwise
restricted by the laws of the State of Nevada or the Articles of
Incorporation, the Board has full control over the business and
affairs of the Corporation. The Board may delegate any of its
authority to manage the business and affairs of the Corporation to
any standing or special committee in accordance with Section 3.14, or to any officer
or agent, and to appoint any persons to be agents of the
Corporation with such powers, including the power to sub-delegate,
and upon such terms as the Board deems appropriate.
(b) The Board, in its
discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may (i) require that
any votes cast at such meeting be cast by written ballot, or (ii)
submit any contract or act for approval or ratification at any
annual meeting of the stockholders or any special meeting properly
called and noticed for the purpose of considering any such contract
or act, provided a quorum is present.
-9-
Section
3.14 COMMITTEES
Committees
designated and appointed by the Board shall function subject to and
in accordance with the following regulations and
procedures:
(a) Designation and Appointment.
The Board may designate and appoint one or more committees under
such name or names and for such purposes or functions the Board
deems appropriate.
(b) Members; Alternate Members;
Terms. Each committee thus designated and appointed shall
consist of one or more directors of the Corporation. The Board may
also appoint natural persons who are not directors to serve on any
committee, as long as at least one director of the Corporation
serves on such committee. The Board may designate one or more of
its members as alternate members of any committee, who may, subject
to any limitations imposed by the Board, replace absent or
disqualified members at any meeting of that committee. If the Board
has not designated alternate members to a committee, then in the
absence or disqualification of a member of a committee from a
meeting, the member or members present at such meeting and not
disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board to act at such
meeting in the place of any such absent or disqualified member
(“substitute
member”). The members or alternate members of any such
committee shall serve at the pleasure of, and subject to the
discretion of, the Board.
(c) Authority. Each committee, to
the extent provided in the resolution of the Board creating same,
shall have and may exercise such powers and authority of the Board
in the management of the business and affairs of the Corporation as
the Board directs and delegates, except any matters which are
required by law to be reserved unto or acted upon by the entire
Board.
(d) Records. Each committee shall
keep and maintain regular records or minutes of its meetings and
report the same to the Board when required.
(e) Change in Number. The number of
members or alternate members of any committee appointed by the
Board, as herein provided, may be increased or decreased from time
to time by appropriate resolution adopted by the
Board.
(f) Vacancies. Vacancies in the
membership of any committee shall be filled by the Board, at a
regular or special meeting of the Board, in a manner consistent
with the provisions of this Section 3.14.
(g) Removal. Any member or
alternate member of any committee may be removed by the Board,
whenever in its judgment the best interests of the Corporation will
be served thereby.
(h) Meetings. The time, place and
notice (if any) of committee meetings shall be determined by the
members of such committee.
(i) Quorum; Requisite Vote. At
meetings of any committee, a majority of the number of members
designated by the Board to such committee shall constitute a quorum
for the transaction of business. For purposes of determining the
presence of a quorum, alternate members or substitute members
acting in the place of members at a meeting shall be counted to the
same extent as the members of the committee they are replacing;
provided, however, that for purposes of determining the presence of
a quorum, alternate members and substitute members (whether or not
acting in the place of members at a meeting) shall not be included
in the number of members designated by the Board to such committee.
The act of a majority of the members (and if acting in the place of
members, alternate members or substitute members) of the committee
present at any meeting at which a quorum is present shall be the
act of such committee, except as otherwise specifically provided by
law. If a quorum is not present at a meeting of such committee, the
members of such committee present may adjourn and reconvene the
meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is
present.
(j) Compensation. Appropriate
compensation for members and alternate members of any committee
appointed pursuant to the authority hereof may be authorized by the
Board pursuant to Section
3.15 or by a committee specifically authorized by the Board
to authorize compensation.
-10-
(k) Action Without Meetings. Any
action required or permitted to be taken at a meeting of any
committee may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all members of such
committee. Such consent shall have the same force and effect as a
unanimous vote at a meeting. The signed consent, or a signed copy,
shall become a part of the record of such committee.
The
Board, without regard to personal interest, may establish the
compensation of directors for services in any capacity. If the
Board so establishes the compensation of directors, such
compensation is presumed fair to the Corporation unless proven
unfair by a preponderance of the evidence.
Meetings of the
Board shall be presided over by the Chairman of the Board or, in
the absence of the Chairman of the Board, by the Vice-Chairman, if
any and if present at the meeting or, in his or her absence by a
chairman chosen at the meeting. The Secretary or, in the absence of
the Secretary, an Assistant Secretary, shall act as Secretary of
the meeting, but in the absence of the Secretary and any Assistant
Secretary the chairman of the meeting may appoint any person to act
as Secretary of the meeting. The order of business at each such
meeting shall be as determined by the chairman of the
meeting.
The
Board may appoint one or more advisory panels to consult and advise
the Board on technical or other matters as the Board requests and
on such terms and at such times as the Board determines. The
advisory panel members need not be directors, officers, or
committee members and shall have none of the powers or duties
thereof.
ARTICLE
IV - OFFICERS
The
officers of the Corporation appointed by the Board shall be a
Chairman of the Board, a Chief Executive Officer, a President, a
Chief Financial Officer, a Secretary and such other officers
(including Vice Presidents, Assistant Secretaries and Assistant
Treasurers) as the Board from time to time determines. Any
individual may hold multiple officer positions. Officers elected by
the Board shall have such powers and duties as generally pertain to
their respective offices, subject to the specific provisions of
this Article IV.
Such officers shall also have such powers and duties as from time
to time are conferred by the Board. The Chief Executive Officer or
President may also appoint such other officers (including one or
more Vice Presidents and Controllers) as may be necessary or
desirable for the conduct of the business of the Corporation. Such
other officers shall have such powers and duties and shall hold
their offices for such terms as provided in these Bylaws or as
prescribed by the Board or, if such officer has been appointed by
the Chief Executive Officer or President, as prescribed by the
appointing officer.
The
appointed officers of the Corporation shall hold office until their
successors are duly elected and qualified or until their earlier
death, resignation, retirement, disqualification, or removal from
office. Any officer may be removed, with or without cause, at any
time by the Board. Any officer appointed by the Chief Executive
Officer or President may also be removed, with or without cause, by
the Chief Executive Officer or President, as the case may be,
unless the Board otherwise provides.
-11-
Section
4.3 VACANCIES
Any
vacancy occurring in any officer position of the Corporation may be
filled by the Board. Any vacancy occurring in any officer position
that was filled by appointment by the Chief Executive Officer or
President may be filled by the Chief Executive Officer or
President, as the case may be, unless the Board determines that
such office shall be filled by the Board, in which case the Board
shall appoint such officer.
The
Board may appoint a Chief Executive Officer who, subject to the
supervision and control of the Board, shall have the ultimate
responsibility for the management and control of the business and
affairs of the Corporation, and shall perform such other duties and
have such other powers which are delegated to him or her by the
Board, these Bylaws or as provided by law.
The
President, subject to the supervision and control of the Board,
shall in general actively supervise and control the business and
affairs of the Corporation. The President shall keep the Board
fully informed as the Board may request and shall consult with the
Board concerning the business of the Corporation. The President
shall perform such other duties and have such other powers (if any)
which are delegated and assigned to him or her by the Board or
these Bylaws or as provided by law.
The
Chief Financial Officer shall perform all duties commonly incident
to that office (including the care and custody of the funds and
securities of the Corporation that from time to time come into the
Chief Financial Officer’s hands and the deposit of funds of
the Corporation in such banks or trust companies as the Board, the
Chief Executive Officer or the President authorizes). If a
Treasurer has not been appointed, the Chief Financial Officer shall
be deemed the Treasurer of the Corporation,
The
Board may appoint one or more Vice Presidents. In the absence or
disability of the President, or at the President’s request,
the Vice President or Vice Presidents, in order of their rank as
fixed by the Board, and if not ranked, the Vice Presidents in the
order designated by the Board, or in the absence of such
designation, in the order designated by the President, shall
perform all of the duties of the President, and when so acting,
shall have all the powers of, and be subject to all the
restrictions on, the President. Each Vice President shall perform
such other duties and have such other powers (if any) which are
delegated and assigned to him or her by the Board, the President or
these Bylaws or as may be provided by law.
The
Secretary shall attend all meetings of the stockholders, the Board
and any committees, and shall keep, or cause to be kept, the
minutes of proceedings thereof in books provided for that purpose.
The Secretary shall keep, or cause to be kept, a register of the
stockholders of the Corporation and shall be responsible for the
giving of notices of meetings of the stockholders, the Board and
any committees, and shall see that all notices are duly given in
accordance with the provisions of these Bylaws and as required by
law. The Secretary shall be custodian of the corporate seal, the
records of the Corporation, the stock certificate books, transfer
books and stock ledgers, and such other books and papers as the
Board or appropriate committee directs. The Secretary shall perform
all other duties commonly incident to his or her office and shall
perform such other duties (if any) which are assigned to him or her
by the Board, the Chief Executive Officer, the President or these
Bylaws or as provided by law.
-12-
Section
4.9 ASSISTANT
SECRETARIES
An
Assistant Secretary shall, at the request of the Secretary, or in
the absence or disability of the Secretary, perform all the duties
of the Secretary. He or she shall perform such other duties (if
any) as are assigned to him or her by the Board, the Chief
Executive Officer, the President or these Bylaws or as provided by
law.
The
Treasurer, subject to the order of the Board, shall have the care
and custody of, and be responsible for, all of the money, funds,
securities, receipts and valuable papers, documents and instruments
of the Corporation, and all books and records relating thereto. The
Treasurer shall keep, or cause to be kept, full and accurate books
of accounts of the Corporation’s transactions, which shall be
the property of the Corporation, and shall render financial reports
and statements of condition of the Corporation when so requested by
the Board, the Chairman of the Board, the Chief Executive Officer
or the President. The Treasurer shall perform all other duties
commonly incident to his or her office and such other duties as
may, from time to time, be assigned to him or her by the Board, the
Chief Executive Officer, the President or these Bylaws or as
provided by law. The Treasurer shall, if required by the Board,
give bond to the Corporation in such sum and with such security as
approved by the Board for the faithful performance of all the
duties of the Treasurer and for restoration to the Corporation, in
the event of the Treasurer’s death, resignation, retirement
or removal from office, of all books, records, papers, vouchers,
money and other property in the Treasurer’s custody or
control and belonging to the Corporation. The expense of such bond
shall be borne by the Corporation. If a Chief Financial Officer of
the Corporation has not been appointed, the Treasurer shall be
deemed the Chief Financial Officer of the Corporation.
An
Assistant Treasurer shall, at the request of the Treasurer, or in
the absence or disability of the Treasurer, perform all the duties
of the Treasurer. He or she shall perform such other duties which
are assigned to him or her by the Board, the Chief Executive
Officer, the President, the Treasurer or these Bylaws or as
provided by law. The Board may require an Assistant Treasurer to
give a bond to the Corporation in such sum and with such security
as it approves, for the faithful performance of the duties of the
Assistant Treasurer, and for restoration to the Corporation, in the
event of the Assistant Treasurer’s death, resignation,
retirement or removal from office, of all books, records, papers,
vouchers, money and other property in the Assistant
Treasurer’s custody or control and belonging to the
Corporation. The expense of such bond shall be borne by the
Corporation.
All
checks, drafts, notes, bonds, bills of exchange, and orders for the
payment of money of the Corporation; all deeds, mortgages, proxies,
powers of attorney and other written contracts, documents,
instruments and agreements to which the Corporation is a party; and
all assignments or endorsements of stock certificates, registered
bonds or other securities owned by the Corporation shall be signed
in the name of the Corporation by such officers or other persons as
the Board from time to time designates. The Board may authorize the
use of facsimile signatures of any such persons. Any officer of the
Corporation is authorized to attend, act and vote, or designate
another officer or an agent of the Corporation to attend, act and
vote, at any meeting of the owners of any entity in which the
Corporation owns an interest or to take action by written consent
in lieu thereof. Such officer or agent, at any such meeting or by
such written action, shall possess and may exercise on behalf of
the Corporation any and all rights and powers incident to the
ownership of such interest.
-13-
ARTICLE
V - CAPITAL STOCK
Shares
of the Corporation’s authorized stock shall, subject to any
provisions or limitations of the laws of the State of Nevada, the
Articles of Incorporation or any contracts or agreements to which
the Corporation is a party, be issued in such manner, at such
times, upon such conditions and for such consideration as
prescribed by the Board.
Every
holder of stock in the Corporation is entitled to have a
certificate signed by or in the name of the Corporation by the
President, the Chief Executive Officer or a Vice President, and by
the Secretary or an Assistant Secretary, of the Corporation (or any
other two officers or agents so authorized by the Board),
certifying the number of shares of stock owned by him, her or it;
provided, however, that the Board may authorize the issuance of
uncertificated shares of some or all of any or all classes or
series of the Corporation’s stock. Any such issuance of
uncertificated shares shall have no effect on existing certificates
for shares until such certificates are surrendered to the
Corporation, or on the respective rights and obligations of the
stockholders. Whenever such certificate is countersigned or
otherwise authenticated by a transfer agent or a transfer clerk and
by a registrar (other than the Corporation), then a facsimile of
the signatures of any corporate officers or agents, the transfer
agent, transfer clerk or the registrar of the Corporation may be
printed or lithographed upon the certificate in lieu of the actual
signatures. If any officer who has signed, or whose facsimile
signature has been used on, any certificate for stock ceases to be
an officer before such certificate has been delivered by the
Corporation, the certificate may nevertheless be adopted by the
Corporation and be issued and delivered as though such person who
signed the certificate, or whose facsimile signature has been used
thereon, had not ceased to be an officer.
All
certificates surrendered to the Corporation shall be canceled and
no new certificate shall be issued until the former certificate for
a like number of shares has been canceled, except that in case of a
lost, stolen, destroyed or mutilated certificate, a new one may be
issued therefor. However, any stockholder applying for the issuance
of a stock certificate in lieu of one lost, stolen, destroyed or
mutilated shall, prior to the issuance of a replacement, provide
the Corporation with his, her or its affidavit of the facts
surrounding the loss, theft, destruction or mutilation and, if
required by the Board, an indemnity bond in an amount satisfactory
to the Board or an authorized officer which amount may be in excess
of the current market value of the stock, and upon such terms as
the Treasurer, other officer who is so authorized, or the Board
requires, which shall indemnify the Corporation against any loss,
damage, cost or inconvenience arising as a consequence of the
issuance of a replacement certificate.
-14-
Section
5.4 REPLACEMENT
CERTIFICATE
When
the Articles of Incorporation are amended in any way affecting the
statements contained in the certificates for outstanding shares of
capital stock of the Corporation or it becomes desirable for any
reason, in the discretion of the Board, including in the event of a
merger of the Corporation with another entity or the conversion or
reorganization of the Corporation, to cancel any outstanding
certificate for shares and issue a new certificate therefor
conforming to the rights of the holder, the Board may order any
holders of outstanding certificates for shares to surrender and
exchange the same for new certificates within a reasonable time
fixed by the Board. The order may provide that a holder of any
certificate(s) ordered to be surrendered shall not be entitled to
vote, receive distributions or exercise any other rights of
stockholders of record until the holder has complied with the
order, but the order operates to suspend such rights only after
notice and until compliance.
All
certificates surrendered to the Corporation for transfer shall be
canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered
and canceled, except that in case of a lost, destroyed, or
mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the Corporation as the Board of Directors
may prescribe.
The
Board may appoint one or more transfer agents, transfer clerks and
registrars of transfer and may require all certificates for shares
of stock to bear the signature of such transfer agents, transfer
clerks or registrars of transfer.
The
Board shall have the power and authority to make such rules and
regulations not inconsistent herewith as it deems expedient
concerning the issue, transfer, and registration of certificates
for shares of the Corporation’s stock.
-15-
ARTICLE
VI - DISTRIBUTIONS
Distributions may
be declared, subject to the provisions of the laws of the State of
Nevada and the Articles of Incorporation, by the Board and may be
paid in cash, property, shares of stock, or any other medium. The
Board may fix in advance a record date, as provided in Section 2.5, prior to the
distribution for the purpose of determining stockholders entitled
to receive any distribution.
ARTICLE
VII - RECORDS; REPORTS; SEAL; AND FINANCIAL MATTERS
All
original records of the Corporation shall be kept at the principal
office of the Corporation by or under the direction of the
Secretary or at such other place or by such other person as
prescribed by these Bylaws or the Board.
The
Board may, by resolution, authorize a seal, and the seal may be
used by causing it, or a facsimile, to be impressed or affixed or
reproduced or otherwise. Except when otherwise specifically
provided herein, any officer of the Corporation shall have the
authority to affix the seal to any document requiring
it.
The
fiscal year-end of the Corporation shall be such date as fixed from
time to time by resolution of the Board.
ARTICLE
VIII - INDEMNIFICATION
(a) Indemnification of Directors and
Officers.
(i) For purposes of
this Article, (A) “Indemnitee” means each director
or officer who was or is a party to, or is threatened to be made a
party to, or is otherwise involved in, any Proceeding (as
hereinafter defined), by reason of the fact that he or she is or
was a director or officer of the Corporation or director, officer,
member, manager, managing member or general partner of a
predecessor entity or affiliate of such entity or is or was serving
in any capacity at the request of the Corporation as a director,
officer, employee, agent, partner, member, manager or fiduciary of,
or in any other capacity for, another corporation or any
partnership, joint venture, limited liability company, trust, or
other enterprise; and (B) “Proceeding” means any threatened,
pending, or completed action, suit or proceeding (including an
action, suit or proceeding by or in the right of the Corporation),
whether civil, criminal, administrative, or
investigative.
-16-
(ii) Each
Indemnitee shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by Nevada law, against
all expense, liability and loss (including attorneys’ fees,
judgments, fines, taxes, penalties, and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Indemnitee in
connection with any Proceeding; provided that such Indemnitee
either is not liable pursuant to NRS 78.138 (or any successor
statute) or acted in good faith and in a manner such Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Corporation and, with respect to any Proceeding that is
criminal in nature, had no reasonable cause to believe that his or
her conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, conviction or upon a plea of
nolo contendere or its
equivalent, does not, of itself, create a presumption that the
Indemnitee is liable pursuant to NRS 78.138 (or any successor
statute) or did not act in good faith and in a manner which he or
she reasonably believed to be in or not opposed to the best
interests of the Corporation, or that, with respect to any criminal
proceeding he or she had reasonable cause to believe that his or
her conduct was unlawful. The Corporation shall not indemnify an
Indemnitee for any claim, issue or matter as to which the
Indemnitee has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the
Corporation or for any amounts paid in settlement to the
Corporation, unless and only to the extent that the court in which
the Proceeding was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such amounts as the court deems proper. Except as so
ordered by a court and for advancement of expenses pursuant to this
Section, indemnification may not be made to or on behalf of an
Indemnitee if a final adjudication establishes that his or her acts
or omissions involved intentional misconduct, fraud or a knowing
violation of law and was material to the cause of action.
Notwithstanding anything to the contrary in these Bylaws, no
director or officer may be indemnified for expenses incurred in
defending any threatened, pending, or completed action, suit or
proceeding (including an action, suit or proceeding by or in the
right of the Corporation), whether civil, criminal, administrative
or investigative, that such director or officer incurred in his or
her capacity as a stockholder.
(iii) Indemnification
pursuant to this Section shall continue as to an Indemnitee who has
ceased to be a director or officer of the Corporation or director,
officer, member, manager, managing member or general partner of a
predecessor entity or affiliate of such entity or a director,
officer, employee, agent, partner, member, manager or fiduciary of,
or to serve in any other capacity for, another corporation or any
partnership, joint venture, limited liability company, trust, or
other enterprise and shall inure to the benefit of his or her
heirs, executors and administrators.
(iv) The
expenses of Indemnitees must be paid by the Corporation or through
insurance purchased and maintained by the Corporation or through
other financial arrangements made by the Corporation, as they are
incurred and in advance of the final disposition of the Proceeding,
upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he or she is not entitled to
be indemnified by the Corporation. To the extent that a director or
officer of the Corporation is successful on the merits or otherwise
in defense of any Proceeding, or in the defense of any claim, issue
or matter therein, the Corporation shall indemnify him or her
against expenses, including attorneys’ fees, actually and
reasonably incurred in by him or her in connection with the
defense.
(b) Indemnification of Employees and Other
Persons. The Corporation may, by action of its Board and to
the extent provided in such action, indemnify employees and other
persons as though they were Indemnitees.
(c) Non-Exclusivity of Rights. The
rights to indemnification provided in this Article shall not be
exclusive of any other rights that any person may have or hereafter
acquire under any statute, provision of the Articles of
Incorporation or these Bylaws, agreement, vote of stockholders or
directors, or otherwise.
(d) Insurance. The Corporation may
purchase and maintain insurance or make other financial
arrangements on behalf of any Indemnitee for any liability asserted
against him or her and liability and expenses incurred by him or
her in his or her capacity as a director, officer, employee,
member, managing member or agent, or arising out of his or her
status as such, whether or not the Corporation has the authority to
indemnify him or her against such liability and
expenses.
-17-
(e) Other Financial Arrangements.
The other financial arrangements which may be made by the
Corporation may include: (i) the creation of a trust fund; (ii) the
establishment of a program of self-insurance; (iii) the securing of
its obligation of indemnification by granting a security interest
or other lien on any assets of the Corporation; and (iv) the
establishment of a letter of credit, guarantee or surety. No
financial arrangement so made may provide protection for a person
adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct,
fraud, or a knowing violation of law, except with respect to
advancement of expenses or indemnification ordered by a
court.
(f) Other Matters Relating to Insurance or
Financial Arrangements. Any insurance or other financial
arrangement made on behalf of a person pursuant to this Section may
be provided by the Corporation or any other person approved by the
Board, even if all or part of the other person’s stock or
other securities are owned by the Corporation. In the absence of
fraud (i) the decision of the Board as to the propriety of the
terms and conditions of any insurance or other financial
arrangement made pursuant to this Section and the choice of the
person to provide the insurance or other financial arrangement is
conclusive; and (ii) the insurance or other financial arrangement
is not void or voidable and does not subject any director approving
it to personal liability for his action, even if a director
approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial
arrangement.
The
provisions of this Article
VIII relating to indemnification and advancement of expenses
shall constitute a contract between the Corporation and each of its
directors and officers which may be modified as to any director or
officer only with that person’s consent or as specifically
provided in this Section. Notwithstanding any other provision of
these Bylaws relating to their amendment generally, any repeal or
amendment of this Article which is adverse to any director or
officer shall apply to such director or officer only on a
prospective basis, and shall not limit the rights of an Indemnitee
to indemnification with respect to any action or failure to act
occurring prior to the time of such repeal or amendment.
Notwithstanding any other provision of these Bylaws (including
Article X), no
repeal or amendment of these Bylaws shall affect any of this
Article VIII so as
to limit or reduce the indemnification and advancement of expenses
in any manner unless adopted by (a) the unanimous vote of the
directors of the Corporation then serving, or (b) by the
stockholders as set forth in Article X; provided that no
such amendment shall have a retroactive effect inconsistent with
the preceding sentence.
ARTICLE
IX - CHANGES IN NEVADA LAW
References in these
Bylaws to Nevada law or the NRS or to any provision thereof shall
be to such law as it existed on the date these Bylaws were adopted
or as such law thereafter may be changed; provided that (a) in the
case of any change which expands the liability of directors or
officers or limits the indemnification rights or the rights to
advancement of expenses which the Corporation may provide in
Article VIII, the
rights to limited liability, to indemnification and to the
advancement of expenses provided in the Articles of Incorporation
or these Bylaws shall continue as theretofore to the extent
permitted by law; and (b) if such change permits the Corporation,
without the requirement of any further action by stockholders or
directors, to limit further the liability of directors or limit the
liability of officers or to provide broader indemnification rights
or rights to the advancement of expenses than the Corporation was
permitted to provide prior to such change, then liability thereupon
shall be so limited and the rights to indemnification and the
advancement of expenses shall be so broadened to the extent
permitted by law.
-18-
ARTICLE
X - AMENDMENT OR REPEAL OF BYLAWS
The
Board shall have the power to adopt, amend, alter or repeal the
Bylaws. The affirmative vote of a majority of the directors as
appointed and serving on the Board at such time shall be required
to adopt, amend, alter or repeal the Bylaws. These Bylaws may also
be altered, amended or repealed at any duly convened meeting of the
stockholders by the affirmative vote of the holders of not less
than two-thirds (2/3) of the voting power of the issued and
outstanding stock of the Corporation entitled to vote thereat,
except that the affirmative vote of holders of not less than
three-fourths (3/4) of the voting power of the issued and
outstanding stock of the Corporation entitled to vote thereat is
required to alter, amend or repeal (or to take any action that
would have substantially the same effect as altering, amending or
repealing) any provision of Article VIII or this
Article X. The
stockholders may provide by resolution adopted by them at the same
meeting at which they approve such alteration, amendment or repeal
of these Bylaws (and by not less than the vote required for such
alteration, amendment or repeal) that the Bylaw provisions so
altered, amended or repealed by the stockholders may not be
repealed, amended or altered by the Board of
Directors.
ARTICLE
XI - FORUM SELECTION
Unless
the Corporation consents in writing to the selection of an
alternative forum, the Eighth Judicial District Court of Clark
County, Nevada, (or, if that Court does not have jurisdiction, the
federal district court for the District of Nevada or other state
courts of the State of Nevada) shall, to the fullest extent
permitted by law, be the sole and exclusive forum for (a) any
derivative action or proceeding brought in the name or right of the
Corporation or on the Corporation’s behalf, (b) any action
asserting a claim of breach of any duty owed by any director,
officer, employee or agent of the Corporation to the Corporation or
to the Corporation’s stockholders, (c) any action or
assertion of a claim arising pursuant to any provision of Chapter
78 or Chapter 92A of the NRS (or any successor statute) or the
Articles of Incorporation or these Bylaws (as each may be amended
from time to time), (d) any action to interpret, apply, enforce or
determine the validity of the Articles of Incorporation or these
Bylaws or (e) any action asserting a claim against the Corporation
governed by the internal affairs doctrine. Any person or entity
purchasing or otherwise acquiring any interest in shares of capital
stock of the Corporation shall be deemed to have notice of, and to
have consented to, the provisions of this Article XI.
ARTICLE
XII - CONTROL SHARE LAW OPT-OUT
In
accordance with NRS 78.378, and notwithstanding anything to the
contrary in these Bylaws or otherwise, the provisions of NRS 78.378
to 78.3793 inclusive , as amended from time to time, or any
successor statutes, shall not apply to the Corporation or to any
acquisition of any shares of the Corporation’s capital
stock.
IN
WITNESS WHEREOF, I have hereunto subscribed my name this 22nd day
of January 2018.
/s/ Michael
Abrams
Michael Abrams,
Corporate Secretary
-19-