Attached files
Exhibit
3.6
BYLAWS OF
BLOCKCHAIN INDUSTRIES, INC.
(a Nevada Corporation)
(adopted effective as of February 1, 2018)
ARTICLE 1
OFFICES
SECTION
1.1.
Principal Office. The principal
offices of Blockchain Industries, Inc. (the “Corporation”) shall be in such
location as the Board of Directors of the Corporation (the
“Board of
Directors”) may determine.
SECTION
1.2.
Other Offices. The Corporation
may also have offices at such other places both within and without
the State of Nevada as the Board of Directors may from time to time
determine or the business of the Corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION
2.1.
Place of Meeting; Chairman. All
meetings of stockholders shall be held at such place, 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. The Chairman of the Board of the Corporation (or the
Executive Chairman of the Corporation, if such office is designated
and filled in accordance with these Bylaws) (the
“Chairman of the
Board”) or any other person specifically designated by
the Board of Directors shall act as the Chairman for any meeting of
stockholders of the Corporation. The Chairman of the Board (or his
or her designee) shall have full authority to control the process
of any stockholder meeting, including, without limitation,
determining whether any proposals or nominations were properly
brought before such meeting, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining
order at the meeting, limitations on participation in such meeting
to stockholders of record of the Corporation and their duly
authorized and constituted proxies and such other persons as the
Chairman of the Board (or his or her designee) shall permit,
restrictions on entry to the meeting after the time fixed for the
commencement thereof, requiring ballots by written consent,
limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls
for balloting on matters which are to be voted on by
ballot.
SECTION
2.2.
Annual Meetings. The annual
meeting of stockholders of the Corporation shall be held at such
date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, subject to
any postponement in the Board of Directors’ sole discretion,
upon notice of such postponement given in any manner deeded
reasonable by the Board of Directors.
SECTION
2.3.
Special Meetings. Special
meetings of the stockholders of the Corporation, for any purpose or
purposes, unless otherwise prescribed by the Nevada Revised
Statutes (“NRS”)
or by the Articles of Incorporation of the Corporation (the
“Articles of
Incorporation”), may be called exclusively by: (i) the
Chairman of the Board or the Chief Executive Officer, President or
other executive officer of the Corporation, (ii) the Board of
Directors or (iii) the request in writing of stockholders of
record, and only of record, holding the “Requisite
Percent” (as hereinafter defined in Section 2.13).
Such request shall state the purpose or purposes of the proposed
meeting. The officers or directors shall fix the date, time and any
place, either within or without the State of Nevada, as the place
for holding such meeting; provided, however, that the date of any
such special meeting shall be not more than ninety (90) days after
the date on which a special meeting request properly brought
pursuant to Sections 2.3 and 2.5 are delivered to the Secretary of
the Corporation.
SECTION
2.4.
Notice of Meeting. Written
notice of the annual and each special meeting of stockholders of
the Corporation, stating the time, place and purpose or purposes
thereof, shall be given to each stockholder entitled to vote
thereat, not less than ten (10) nor more than sixty (60) days
before the meeting and shall be signed by the Chairman of the
Board, the President or the Secretary of the Corporation (the
“Secretary”).
The Board of Directors may postpone a special meeting in its sole
discretion in any manner it deems reasonable. In no event shall any
adjournment or postponement of an annual meeting or special meeting
or the announcement thereof commence a new time period for the
giving of a stockholder’s notice as described
below.
SECTION
2.5.
Business Conducted at
Meetings.
Section
2.5.1
At any meeting of
the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly
brought before a meeting, business must be: (a) specified in the
notice of meeting (or any supplement thereto provided within the
notice period specified in Section 2.4) given by or at the
direction of the Chairman of the Board, the President or the Board
of Directors, (b) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder or
stockholders of record, and only of record, holding the Requisite
Percent in accordance with applicable law, these Bylaws or
otherwise. In addition to any other applicable requirements set
forth in these Bylaws, federal securities laws or otherwise, for
business to be properly brought before a meeting called by
stockholders representing the Requisite Percent, such
stockholder(s) must have given timely notice thereof in writing to
the Secretary. Any special meeting of the Corporation proposed to
be called by a stockholder or stockholders in such capacity shall
not be required to be held: (i) with respect to any matter, within
12 months after any annual or special meeting of stockholders at
which the same matter was included on the agenda, or if the same
matter will be included on the agenda at an annual meeting to be
held within 90 days after the receipt by the Corporation of such
request (the election or removal of directors to be deemed the same
matter with respect to all matters involving the election or
removal of directors) or (ii) if the purpose of the special meeting
is not a lawful purpose or if such request violates applicable law.
A stockholder may revoke a request for a special meeting at any
time by written revocation delivered to the Secretary, and if,
following such revocation, there are un-revoked requests from
stockholders holding in the aggregate less than the requisite
number of shares entitling the stockholders to request the calling
of a special meeting, the Board of Directors, in its discretion,
may cancel the special meeting. If none of the stockholders who
submitted the request for a special meeting appears or sends a
qualified representative to present the nominations proposed to be
presented or other business proposed to be conducted at the special
meeting, the Corporation need not present such nominations or other
business for a vote at such meeting.
Section
2.5.2
To be timely, a
stockholder’s notice of a proposal to be included at an
annual meeting must be delivered to or mailed and received at the
principal offices of the Corporation not less than ninety (90) days
nor more than one hundred twenty (120) days prior to the
anniversary of the date on which the Corporation first mailed its
proxy materials for the previous year’s annual meeting of
stockholders (or the date on which the Corporation mails its proxy
materials for the current year if during the prior year the
Corporation did not hold an annual meeting or if the date of the
annual meeting was changed more than thirty (30) days from the
prior year).
Section
2.5.3
A record
stockholders’ notice to the Secretary shall set forth in
writing as to each matter the stockholder(s) propose to bring
before the meeting: (a) a detailed description of the business
desired to be brought before the meeting and the reasons for
proposing such business, including the complete text of any
resolutions, bylaws or Articles of Incorporation amendments
proposed for consideration, (b) the name and address, as they
appear on the Corporation’s books, of the stockholders
proposing such business, (c) the class and number of shares of the
Corporation which are owned directly or indirectly of record and
directly or indirectly beneficially owned by the stockholders and
each of its affiliates (within the meaning of Rule 144 promulgated
under the Securities Act of 1933, as amended, or any successor rule
thereto (“Rule
144”)), including any shares of the Corporation owned
or controlled via derivatives, synthetic securities, hedged
positions and other economic and voting mechanisms, (d) any
material interest of the stockholders in such proposed business and
any agreements or understandings to which such stockholders are a
party which relate in any way, directly or indirectly, to the
proposed business to be conducted, including a description of all
arrangements or understandings between such stockholder and any
other person or persons (including their names), (e) a
representation as to whether or not such stockholder intends to
solicit proxies, (f) a representation as to whether or not such
stockholder intends to appear in person or by proxy at the
applicable meeting, and (g) such other information regarding the
stockholder in his, her or its capacity as a proponent of a
stockholder proposal that would be required to be disclosed in a
proxy statement or other filing with the United States Securities
and Exchange Commission (“SEC”) required to be made in
connection with the contested solicitation of proxies pursuant to
the SEC’s proxy rules.
Section
2.5.4
Notwithstanding
anything in these Bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set
forth in this Section 2.5. The Chairman of the meeting shall, in
his or her sole discretion, determine and declare to the meeting
whether or not any business was properly brought before the
meeting. Any such business not properly brought before the meeting
shall not be transacted. Nothing in this Section 2.5 shall affect
the right of a stockholder to request inclusion of a proposal in
the Corporation’s proxy statement to the extent that such
right is provided by an applicable rule of the SEC. Notwithstanding
the foregoing, the advance notice provisions of these Bylaws shall
apply to all stockholder proposals regardless of whether such
proposal is sought to be included in the Corporation’s proxy
statement or in a separate proxy statement.
SECTION
2.6.
Nomination of
Directors.
Nomination of
candidates for election as directors of the Corporation at any
meeting of stockholders called for the election of directors, in
whole or in part (an “Election Meeting”), must be made
by the Board of Directors or by any stockholder entitled to vote at
such Election Meeting, in accordance with the following
procedures.
Section
2.6.1.
Nominations made by
the Board of Directors shall be made at a meeting of the Board of
Directors or by written consent of the directors in lieu of a
meeting prior to the date of the Election Meeting. At the request
of the Corporation, each proposed individual nominated by the Board
of Directors shall provide the Corporation with such information
concerning himself or herself as is required, under the rules of
the SEC and any applicable securities exchange, to be included in
the Corporation’s proxy statement soliciting proxies for his
or her election as a director.
Section
2.6.2.
The exclusive means
by which a stockholder may nominate a director shall be: (i) in the
case of the nomination of a director for election at an annual
meeting, by delivery of a notice to the Secretary, not less than
ninety (90) days nor more than one hundred twenty (120) days prior
to the anniversary of the date on which the Corporation first
mailed its proxy materials for the previous year’s annual
meeting of stockholders (or the date on which the Corporation mails
its proxy materials for the current year if during the prior year
the Corporation did not hold an annual meeting or if the date of
the annual meeting was changed more than thirty (30) days from the
prior year); or (ii) in the case of the nomination of a director
for election at a special meeting (other than pursuant to a special
meeting request in accordance with the requirements set forth in
Sections 2.3 and 2.5), not less than ninety (90) days nor more than
one hundred twenty (120) days prior to such special meeting or, if
later, the tenth (10th) day following the day on which public
disclosure (of the date of such special meeting was first made,
setting forth: (a) the name, age, business address and the primary
legal residence address of each nominee proposed in such notice,
(b) the principal occupation or employment of such nominee, (c) the
number of shares of capital stock of the Corporation which are
owned directly or indirectly of record and directly or indirectly
beneficially owned by the nominee and each of its affiliates
(within the meaning of Rule 144), including any shares of the
Corporation owned or controlled via derivatives, hedged positions
and other economic and voting mechanisms, (d) any material
agreements, understandings or relationships, including financial
transactions and compensation, between the nominating stockholder
and the proposed nominees and (d) such other information concerning
each such nominee as would be required, under the rules of the SEC,
in a proxy statement soliciting proxies in a contested election of
such nominees. Such notice shall include a signed consent of each
such nominee to serve as a director of the Corporation, if elected.
In addition, any stockholder nominee, to be validly nominated,
shall submit to the Secretary the questionnaire required pursuant
to Section 2.6.3 of these Bylaws. A stockholder intending to
nominate one or more candidates for election as directors must
comply with the advance notice requirements set forth in this
Section 2.6.2 specifically applicable to the nomination of
candidates for election as directors for such nomination to be
properly brought before the meeting. For purposes of these Bylaws,
“public
disclosure” shall mean disclosure in a press release
reported by a national news service or in a document publicly filed
by the Corporation with the SEC pursuant to Sections 13, 14 or
15(d) of the Securities Exchange Act of 1934, as
amended.
Section
2.6.3
To be eligible to
be a director nominee nominated by a stockholder or stockholders
for election or reelection as a director of the Corporation, such
nominee must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 2.6.2 of these
Bylaws) to the Secretary at the principal executive offices of the
Corporation a written questionnaire (the “Questionnaire”) with respect to
the background, qualification and experience of such person and the
background of any other person or entity on whose behalf the
nomination is being made (which questionnaire shall be in the form
approved by the Corporation and provided by the Secretary or such
Secretary’s designee) and a written representation and
agreement that such person: (a) will abide by the requirements of
these Bylaws and the Articles of Incorporation as in effect at the
time of their nomination and as validly amended, (b) is not and
will not become a party to (1) any agreement, arrangement or
understanding with, and has not given any commitment or assurance
to, any person or entity as to how such person, if elected as a
director of the Corporation, will act or vote on any issue or
question (a “Voting
Commitment”) that has not been disclosed to the
Corporation or (2) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as
a director of the Corporation, with such person’s fiduciary
duties under applicable law, (c) is not and will not become a party
to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been
disclosed therein, and (d) in such person’s individual
capacity and on behalf of any person or entity on whose behalf the
nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with all applicable
publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and
guidelines of the Corporation. If, prior to the Election Meeting,
there is a change in any information set forth on the
Questionnaire, then such director candidate shall promptly notify
the Secretary by submitting a revised Questionnaire.
Section
2.6.4.
In the event that a
person is validly designated by the Board of Directors as a nominee
in accordance with this Section 2.6 and shall thereafter become
unable or willing to stand for election to the Board of Directors,
the Board of Directors may designate a substitute nominee who meets
all applicable standards under these Bylaws.
Section
2.6.5.
If the Chairman of
the Election Meeting determines that a nomination was not made in
accordance with the foregoing procedures, such nomination shall be
void.
SECTION
2.7. Quorum;
Adjournment.
Section
2.7.1
The holders of at
least the Requisite Percent, present in person or represented by
proxy (provided the proxy has authority to vote on at least one
matter at such meeting), shall constitute a quorum at any meeting
of stockholders for the transaction of business, except when
stockholders are required to vote by class, in which event the
Requisite Percent of the issued and outstanding shares of the
appropriate class shall be present in person or by proxy (provided
the proxy has authority to vote on at least one matter at such
meeting) in order to constitute a quorum as to such class vote, and
except as otherwise provided by the NRS or by the Articles of
Incorporation. The stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough
stockholders to have less than a quorum if any action taken (other
than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
Section
2.7.2
Notwithstanding any
other provision of the Articles of Incorporation or these Bylaws,
at any annual or special meeting of stockholders of the
Corporation, whether or not a quorum is present, the Chairman of
the Board or the person presiding as Chairman of the meeting shall
have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, whether or not a quorum
shall be present or represented. If the adjournment is for more
than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting in accordance with Section 2.4 of these Bylaws.
At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION
2.8.
Voting; Proxies.
Section
2.8.1
Except as provided
for below or by applicable law, rule or regulation, when a quorum
is present at any meeting of the stockholders, any action by the
stockholders on a matter except the election of directors shall be
approved if approved by the majority of the votes cast. Each
nominee for director shall be elected by the majority of the votes
cast with respect to that nominee’s election at any meeting
for the election of directors at which a quorum is present,
provided, however, that, in the case of a director nominee in a
Contested Election, the Board of Directors, in its sole discretion,
may determine that directors shall be elected by a plurality of the
votes cast in any Contested Election, such determination to be made
no later than five (5) days prior to the date of the Election
Meeting as initially announced. For purposes of these Bylaws, a
“Contested
Election” means an election of directors with respect
to which the Board of Directors determines that the number of
nominees exceeds the number of directors to be elected and the
Board of Directors has not rescinded such determination by the date
that is five (5) days prior to the date of the Election Meeting as
initially announced. In determining the number of votes cast in a
Contested Election, abstentions and broker non-votes, if any, will
not be treated as votes cast. The provisions of this paragraph will
govern with respect to all votes of stockholders except as
otherwise provided for in the Articles of Incorporation or by a
specific statutory provision superseding the provisions of these
Bylaws.
Section
2.8.2
Every stockholder
having the right to vote shall be entitled to vote in person, or by
proxy: (a) appointed by an instrument in writing subscribed by such
stockholder or by his or her duly authorized attorney or (b)
authorized by the transmission of an electronic record by the
stockholder to the person who will be the holder of the proxy or to
a firm which solicits proxies or like agent who is authorized by
the person who will be the holder of the proxy to receive the
transmission subject to any procedures the Board of Directors may
adopt from time to time to determine that the electronic record is
authorized by the stockholder; provided, however, that no such
proxy shall be valid after the expiration of six (6) months from
the date of its execution, unless coupled with an interest, or
unless the person executing it specifies therein the length of time
for which it is to continue in force, which in no case shall exceed
seven (7) years from the date of its execution. If such instrument
or record shall designate two (2) or more persons to act as
proxies, unless such instrument shall provide the contrary, a
majority of such persons present at any meeting at which their
powers thereunder are to be exercised shall have and may exercise
all the powers of voting or giving consents thereby conferred, or
if only one (1) be present, then such powers may be exercised by
that one (1). Unless required by the NRS or determined by the
Chairman of the meeting to be advisable, the vote on any matter
need not be by written ballot. No stockholder shall have cumulative
voting rights.
SECTION
2.9.
Consent of Stockholders.
Whenever the vote of the stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any
corporate action, the meeting and vote of stockholders may be
dispensed with if stockholders, having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted, consent in writing to such corporate action
being taken; provided, that in no case shall the written consent be
by the holders of stock having less than the minimum percentage of
the vote required by the NRS. Any action by consent of the
stockholders pursuant to this Section 2.9 must follow the notice
and timing procedures of Section 2.5 applicable to any business to
be conducted at a stockholder meeting. Further, upon the request of
a stockholder to conduct a consent solicitation, the Board of
Directors shall adopt a resolution fixing a record date within ten
(10) days of the date on which a request therefor is received,
provided that such record date shall not be more than ten (10) days
after the date of the adoption of such resolution.
SECTION
2.10.
Voting of Stock of Certain
Holders. Shares standing in the name of another entity,
domestic or foreign, may be voted by such officer, agent or proxy
as the governing documents of such entity may prescribe, or in the
absence of such provision, as the Board of Directors or governing
body of such entity may determine. Shares standing in the name of a
deceased person may be voted by the executor or administrator of
such deceased person, either in person or by proxy. Shares standing
in the name of a guardian, conservator or trustee may be voted by
such fiduciary, either in person or by proxy, but no such fiduciary
shall be entitled to vote shares held in such fiduciary capacity
without a transfer of such shares into the name of such fiduciary.
Shares outstanding in the name of a receiver may be voted by such
receiver. A stockholder whose shares are pledged shall be entitled
to vote such shares, unless in the transfer by the pledgor on the
books of the Corporation, he or she has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his or
her proxy, may represent the stock and vote thereon.
SECTION
2.11.
Treasury Stock. 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.
SECTION
2.12.
Fixing Record Date. The Board
of Directors may fix in advance a date for any meeting of
stockholders (which date shall not be more than sixty (60) nor less
than ten (10) days preceding the date of any such meeting of
stockholders), a date for payment of any dividend or distribution,
a date for the allotment of rights, a date when any change or
conversion or exchange of capital stock shall go into effect, or a
date in connection with obtaining a consent of stockholders (which
date shall not precede or be more than ten (10) days after the date
the resolution setting such record date is adopted by the Board of
Directors), in each case as a record date (the “Record Date”) for the
determination of the stockholders entitled to notice of, and to
vote at, any such meeting and any adjournment thereof, to receive
payment of any such dividend or distribution, to receive any such
allotment of rights, to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such
consent, as the case may be. In any such case such stockholders and
only such stockholders as shall be stockholders of record on the
Record Date shall be entitled to such notice of and to vote at any
such meeting and any adjournment thereof, to receive payment of
such dividend or distribution, to receive such allotment of rights,
to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the
Corporation after any such Record Date.
SECTION
2.13
Requisite Percent. Prior to the
occurrence of a “Qualified
Financing” (as hereinafter defined), twenty-five (25%)
percent of the entire capital stock of the Corporation issued,
outstanding and entitled to vote and held by the stockholders of
record shall constitute the “Requisite Percent.” Upon the
closing of a Qualified Financing, the Requisite Percent shall
automatically, and without any further action on the part of the
Corporation, the Board of Directors or any stockholder, increase to
sixty-six and two-thirds (66 2/3%) percent of the entire capital
stock of the Corporation issued, outstanding and entitled to vote
and held by the stockholders of record. Such adjustment to the
Requisite Percent shall be effective immediately upon the closing
of a Qualified Financing. “Qualified Financing” means the
sale of equity capital or equity security, and rights, options or
warrants or other contracts to purchase any equity capital or
equity security, of the Company in one or a series of related
transactions that results in gross proceeds to the Corporation in
U.S. Dollar currency of at least Ten Million (USD $10,000,000)
Dollars.
ARTICLE 3
BOARD OF DIRECTORS
SECTION
3.1.
Powers. The business and
affairs of the Corporation shall be managed by the Board of
Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders. Subject to
compliance with the provisions of the NRS, the powers of the Board
of Directors shall include the power to make a liquidating
distribution of the assets, and wind up the affairs of, the
Corporation.
SECTION
3.2.
Number, Qualifications and
Term. The number of directors which shall constitute the
whole Board of Directors shall be not less than three (3) and not
more than nine (9). Within the limits above specified, the number
of the directors of the Corporation shall be determined solely in
the discretion of the Board of Directors from time to time.
Directors need not be residents of Nevada or stockholders of the
Corporation. Commencing with the 2018 annual meeting of
shareholders, the Directors constituting the Corporation’s
Board of Directors shall be classified, with respect to the time
for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be determined by the Board of
Directors consistent with the terms of this Article 3. At the 2018
annual meeting of shareholders, one class shall be elected to a
term expiring at the annual meeting of shareholders to be held in
2019, another class shall be elected to a term expiring at the
annual meeting of shareholders to be held in 2020, and another
class shall be elected to a term expiring at the annual meeting of
shareholders to be held in 2021, with each class to hold office
until its successor is elected and qualified. At each annual
meeting of the shareholders of the Corporation commencing with the
election in 2019, the successors of the class of Directors whose
term expires at that meeting shall be elected to hold office for a
term expiring at the annual meeting of shareholders held in the
third year following the year of their election.
SECTION
3.3.
Vacancies, Additional Directors;
Removal From Office; Resignation.
SECTION
3.3.1
If any vacancy
occurs in the Board of Directors caused by death, resignation,
retirement, disqualification, removal from office or otherwise, or
if any new directorship is created in accordance with Section 3.2
by an increase in the authorized number of directors, a majority of
the directors then in office, though less than a quorum, or a sole
remaining director, but not the stockholders of the Corporation,
may choose a successor or fill the newly created directorship. Any
director so chosen shall hold office for the unexpired term of his
or her predecessor in his or her office and until his or her
successor shall be elected and qualified, unless sooner
displaced.
SECTION
3.3.2
No decrease in the
number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
SECTION
3.3.3
The stockholders of
the Corporation may remove a member of the Board of Directors by
the affirmative vote of the Requisite Percent.
SECTION
3.3.4
Any director may
resign or voluntarily retire upon giving written notice to the
Chairman of the Board or the Board of Directors. Such retirement or
resignation shall be effective upon the giving of the notice,
unless the notice specifies a later time for its effectiveness. If
such retirement or resignation is effective at a future time, the
Board of Directors may elect a successor to take office when the
retirement or resignation becomes effective.
SECTION
3.4.
Regular Meetings. A regular
meeting of the Board of Directors shall be held each year, without
notice other than this Bylaw provision, at the place of, and
immediately prior to and/or following, the annual meeting of
stockholders; and other regular meetings of the Board of Directors
shall be held during each year, at such time and place as the Board
of Directors may from time to time provide by resolution, either
within or without the State of Nevada, without any notice other
than such resolution. The Board of Directors shall keep minutes of
its regular meetings.
SECTION
3.5.
Special Meetings. Special
meetings of the Board of Directors may be called by the Chairman of
the Board or by the President and shall be called by the Secretary
on the written request of any two (2) directors (should there be
such number then in office). The Chairman of the Board or President
so calling, or the directors so requesting, any such meeting shall
fix the time and any place, either within or without the State of
Nevada, as the place for holding such meeting. The Board of
Directors shall keep minutes of its special meetings.
SECTION
3.6.
Notice of Special Meeting.
Written notice (including via e-mail) of special meetings of the
Board of Directors shall be given to each director at least
twenty-four (24) hours prior to the time of a special meeting. Any
director may waive notice of any meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting solely for the
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 special meeting of the
Board of Directors need be specified in the notice or waiver of
notice of such meeting, except that notice shall be given with
respect to any matter when notice is required by the
NRS.
SECTION
3.7.
Quorum. A majority of the Board
of Directors then serving shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors,
and the act of a majority of the directors present at any meeting
at which there is quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the
NRS, by the Articles of Incorporation or by these Bylaws. If a
quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting,
without notice other than announcement at the meeting, until a
quorum shall be present. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved of by at
least a majority of the required quorum for that
meeting.
SECTION
3.8.
Action Without Meeting. Unless
otherwise restricted by the Articles of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting
of the Board of Directors, or of any committee thereof as provided
in Article 4 of these Bylaws, may be taken without a meeting, if a
written consent thereto is signed by all of the members of the
Board of Directors or of such committee, as the case may be.
Evidence of any consent to action under this Section 3.9 may be
provided in writing, including electronically via email or
facsimile.
SECTION
3.9.
Meeting by Telephone. Any
action required or permitted to be taken by the Board of Directors
or any committee thereof may be taken by means of a meeting by
telephone conference or similar communications method so long as
all persons participating in the meeting can hear each other. Any
person participating in such meeting shall be deemed to be present
in person at such meeting.
SECTION
3.10.
Compensation. Directors, as
such, may receive reasonable compensation for their services, which
shall be set by the Board of Directors, and expenses of attendance
at each regular or special meeting of the Board of Directors;
provided, however, that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other
capacity and receiving additional compensation therefor. Members of
special or standing committees may be allowed like compensation for
their services on committees.
SECTION
3.11.
Rights of Inspection. Every
director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and
to inspect the physical properties of the Corporation and also of
its subsidiary corporations, domestic or foreign. Such inspection
by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts.
SECTION
3.12
Interested Directors. 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 committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose if: (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or their
committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material
facts as to his or their 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 (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
ARTICLE 4
COMMITTEES OF DIRECTORS
SECTION
4.1.
Generally. The Board of
Directors may, by resolution passed by a majority of the whole
Board of Directors, designate one or more additional special or
standing committees, each such additional committee to consist of
one or more of the directors of the Corporation. Each such
committee shall have and may exercise such of the powers of the
Board of Directors in the management of the business and affairs of
the Corporation as may be provided in such resolution, except as
delegated by these Bylaws or by the Board of Directors to another
standing or special committee or as may be prohibited by
law.
SECTION
4.2.
Committee Operations. A
majority of a committee shall constitute a quorum for the
transaction of any committee business. Such committee or committees
shall have such name or names and such limitations of authority as
provided in these Bylaws or as may be determined from time to time
by resolution adopted by the Board of Directors. The Corporation
shall pay all expenses of committee operations. The Board of
Directors may designate one or more appropriate directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the
absence or disqualification of any members of such committee or
committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another appropriate
member of the Board of Directors to act at the meeting in the place
of any absent or disqualified member.
SECTION
4.3.
Minutes. Each committee of
directors shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required. The
Corporation’s Secretary, or any other person designated by
the applicable committee shall (a) serve as the Secretary of the
special or standing committees of the Board of Directors of the
Corporation, (b) keep regular minutes of standing or special
committee proceedings, (c) make available to the Board of
Directors, as required, copies of all resolutions adopted or
minutes or reports of other actions recommended or taken by any
such standing or special committee and (d) otherwise as requested
keep the members of the Board of Directors apprised of the actions
taken by such standing or special committees.
ARTICLE 5
NOTICE
SECTION
5.1.
Methods of Giving
Notice.
SECTION
5.1.1.
Notice to Directors or Committee
Members. Whenever under the provisions of the NRS, the
Articles of Incorporation or these Bylaws, notice is required to be
given to any director or member of any committee of the Board of
Directors, personal notice is not required but such notice may be:
(a) given in writing and mailed to such director or committee
member, (b) sent by electronic transmission (including via e-mail)
to such director or committee member, or (c) given orally or by
telephone; provided, however, that any notice from a stockholder to
any director or member of any committee of the Board of Directors
must be given in writing and mailed to such director or member and
shall be deemed to be given upon receipt by such director or
member. If mailed, notice to a director or member of a committee of
the Board of Directors shall be deemed to be given when deposited
in the United States mail first class, or by overnight courier, in
a sealed envelope, with postage thereon prepaid, addressed, to such
person at his or her business address. If sent by electronic
transmission, notice to a director or member of a committee of the
Board of Directors shall be deemed to be given if by (i) facsimile
transmission, when receipt of the fax is confirmed electronically,
(ii) electronic mail, when delivered to an electronic mail address
of the director or member, (iii) a posting on an electronic network
together with a separate notice to the director or member of the
specific posting, upon the later of (1) such posting and (2) the
giving of the separate notice (which notice may be given in any of
the manners provided above), or (iv) any other form of electronic
transmission, when delivered to the director or
member.
SECTION
5.1.2.
Notices to Stockholders.
Whenever under the provisions of the NRS, the Articles of
Incorporation or these Bylaws, notice is required to be given to
any stockholder, personal notice is not required but such notice
may be given: (a) in writing and mailed to such stockholder, (b) by
a form of electronic transmission consented to by the stockholder
to whom the notice is given or (c) as otherwise permitted by the
SEC. If mailed, notice to a stockholder shall be deemed to be given
when deposited in the United States mail in a sealed envelope, with
postage thereon prepaid, addressed to the stockholder at the
stockholder’s address as it appears on the records of the
Corporation. If sent by electronic transmission, notice to a
stockholder shall be deemed to be given if by (i) facsimile
transmission, when directed to a number at which the stockholder
has consented to receive notice, (ii) electronic mail, when
directed to an electronic mail address at which the stockholder has
consented to receive notice, (iii) a posting on an electronic
network together with a separate notice to the stockholder of the
specific posting, upon the later of (1) such posting and (2) the
giving of the separate notice (which notice may be given in any of
the manners provided above), or (iv) any other form of electronic
transmission, when directed to the stockholder.
SECTION
5.2.
Written Waiver. Whenever any
notice is required to be given by the NRS, the Articles of
Incorporation or these Bylaws, a waiver thereof in a signed writing
or sent by the transmission of an electronic record attributed to
the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent
thereto.
SECTION
5.3.
Consent. Whenever all parties
entitled to vote at any meeting, whether of directors or
stockholders, consent, either by a writing on the records of the
meeting or filed with the Secretary, or by presence at such meeting
and oral consent entered in the minutes of such meeting, or by
taking part in the deliberations at such meeting without objection,
the actions taken at such meeting shall be as valid as if such
action had been taken at a meeting regularly called and noticed. At
such meeting any business may be transacted which is not excepted
from the written consent or to the consideration of which no
objection for lack of notice is made at the time, and if any
meeting be irregular for lack of notice or such consent, provided a
quorum was present at such meeting, the proceedings of such meeting
may be ratified and approved and rendered valid and the
irregularity or defect therein waived by a writing signed by all
parties having the right to vote thereat. Such consent or approval,
if given by stockholders, may be by proxy or power of attorney, but
all such proxies and powers of attorney must be in
writing.
ARTICLE 6
OFFICERS
SECTION
6.1.
Officers.
SECTION
6.1.1
The officers of the
Corporation shall include the Chairman of the Board (or Executive
Chairman, if the Board of Directors designates such office), the
President, the Secretary and the Treasurer, each as approved and
appointed by the Board of Directors. Any two or more offices may be
held by the same person.
SECTION
6.1.2
The officers of the
Corporation may further include a Chief Executive Officer and a
Chief Financial Officer, each as approved and appointed by the
Board of Directors, and may further include, without limitation,
such other executive or subordinate officers and agents, including,
without limitation, one or more Vice Presidents (any one or more of
which may be designated Senior Executive Vice President, Executive
Vice President, Senior Vice President or such other title as may be
determined by the Board of Directors), Assistant Vice Presidents,
Assistant Secretaries and Assistant Treasurers, in each case as the
Board of Directors deems necessary and approve and
appoint.
SECTION
6.1.3
The Board of
Directors may in its discretion delegate to the President the power
and authority to appoint subordinate officers of the Corporation
and to prescribe their respective duties and powers, but in any
instance the Chairman of the Board, the President, the Secretary,
the Treasurer and, if designated, the Chief Executive Officer,
Chief Financial Officer or any other officer responsible for a
principal business unit, division or function of the Corporation
(such as sales, administration or finance), or any other officer
who performs a policy making function (collectively, the
“Principal
Officers”), shall be subject to the approval of and
appointment by the Board of Directors.
SECTION
6.1.4
All officers of the
Corporation shall hold their offices for such terms and shall
exercise such powers and perform such duties as prescribed by these
Bylaws, the Board of Directors or President, as applicable. The
Chairman of the Board shall be elected from among the directors.
With the foregoing exception, none of the other officers need be a
director, and none of the officers need be a stockholder of the
Corporation.
SECTION
6.2.
Election and Term of Office.
The Principal Officers shall each be elected only by, and shall
serve at the pleasure of, the Board of Directors. All other
officers of the Corporation may be appointed as the Board of
Directors or the President deem necessary to elect or appoint. The
officers of the Corporation shall be elected or ratified annually
by the Board of Directors at its first regular meeting held
concurrently with or after the annual meeting of stockholders or as
soon thereafter as conveniently possible (or, in the case of those
officers elected or appointed other than by the Board of Directors,
ratified at the Board of Directors’ first regular meeting
held following their election or appointment or as soon thereafter
as conveniently possible). Subject to the terms and conditions of
any applicable contract between an officer and the Corporation,
each officer shall hold office until his or her successor shall
have been chosen and shall have qualified or until his or her death
or the effective date of his or her resignation or removal, or
until he or she shall cease to be a director in the case of the
Chairman of the Board.
SECTION
6.3.
Removal and Resignation. Any
officer or agent may be removed, either with or without cause, by
the affirmative vote of a majority of the Board of Directors and,
other than the Principal Officers, may also be removed, either with
or without cause, by action of the President whenever, in his, her
judgment, the best interests of the Corporation shall be served
thereby, but such right of removal and any purported removal shall
be without prejudice to the contractual rights, if any, of the
person so removed. Any Principal Officer or other officer or agent
may resign at any time by giving written notice to the Corporation.
Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION
6.4.
Vacancies. Any vacancy
occurring in any Principal Officer office by death, resignation,
removal or otherwise, shall be filled by the Board of Directors for
the unexpired portion of the term. Any vacancy in any other office
may be filled as the Board of Directors or President deem
necessary.
SECTION
6.5.
Compensation. The compensation
of the Principal Officers shall be determined by the Board of
Directors or a designated committee thereof. Compensation of all
other officers and employees of the Corporation shall be determined
by the President in consultation with the Board of Directors or a
designated committee thereof and in accordance with any charter of
any such committee as has been approved by the Board of Directors
or any policies as have been approved by the Board of Directors. No
officer who is also a director shall be prevented from receiving
such compensation by reason of his or her also being a
director.
SECTION
6.6.
Chairman of the Board. The
Chairman of the Board (who may also be designated as Executive
Chairman), shall preside at all meetings of the Board of Directors
and of the stockholders of the Corporation. In the Chairman of the
Board’s absence, such duties shall be attended to by any vice
chairman of the Board of Directors, or if there is no vice
chairman, or such vice chairman is absent, then by the President.
The Chairman of the Board shall act as liaison between the Board of
Directors and the executive officers of the Corporation and shall
be responsible for general oversight of such executive officers.
The Chairman of the Board may also hold the position of Chief
Executive Officer or President, if so approved or appointed by the
Board of Directors. The Chairman of the Board shall formulate and
submit to the Board of Directors matters of general policy for the
Corporation and shall perform such other duties as usually
appertain to the office or as may be prescribed by the Board of
Directors. He or she may sign with the President or any other
officer of the Corporation thereunto authorized by the Board of
Directors certificates for shares of the Corporation, the issuance
of which shall have been authorized by resolution of the Board of
Directors, and any deeds or bonds, which the Board of Directors has
authorized to be executed, except in cases where the signing and
execution thereof has been expressly delegated or reserved by these
Bylaws or by the Board of Directors to some other officer or agent
of the Corporation, or shall be required by law to be otherwise
executed.
SECTION
6.7.
President. The President shall,
subject to the oversight by and control of the Board of Directors,
have general and active management of the business of the
Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President may also,
but shall not be required to, hold the position of Chief Executive
Officer of the Corporation, if so approved or appointed by the
Board of Directors. The President shall keep the Board of Directors
fully informed and shall consult them concerning the business of
the Corporation. Subject to the supervisory powers of the Board of
Directors, the President may sign with the Chairman of the Board or
any other officer of the Corporation thereunto authorized by the
Board of Directors, certificates for shares of capital stock of the
Corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors, and any deeds, bonds,
mortgages, contracts, checks, notes, drafts or other instruments
which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof has been expressly
delegated by these Bylaws or by the Board of Directors to some
other officer or agent of the Corporation, or shall be required by
law to be otherwise executed. In general, the President shall
perform all other duties normally incident to the office of the
President, except any duties expressly delegated to other persons
by these Bylaws, the Board of Directors and such other duties as
may be prescribed by the Board of Directors from time to
time.
SECTION
6.8.
Chief Executive Officer. The
Chief Executive Officer, if any, shall, in general, perform such
duties as usually pertain to the position of chief executive
officer and such duties as may be prescribed by the Board of
Directors.
SECTION
6.9.
Chief Financial Officer. The
Chief Financial Officer, if any, shall, in general, perform such
duties as usually pertain to the position of chief financial
officer and such duties as may be prescribed by the Board of
Directors. The Chief Financial Officer (or the Treasurer, if the
office of Chief Financial Officer is unoccupied) shall prepare
annually (by the thirtieth (30th) day following the end of each
fiscal year) a customary and appropriate financial and operational
budget of income, expense and cash flows of the Company for the
upcoming fiscal year, which budget shall be reviewed and approved
by the Board of Directors. Such budget shall be updated quarterly
(including a reconciliation of the Company’s actual
performance versus the approved budget) and presented to the Board
of Directors for review and revision as determined by the Board of
Directors.
SECTION
6.10.
Secretary. The Secretary shall:
(a) keep the minutes of the meetings of the stockholders, the Board
of Directors and committees of directors; (b) see that all notices
are duly given in accordance with the provisions of these Bylaws
and as required by law; (c) be custodian of the corporate records
and of the seal of the Corporation, and see that the seal of the
Corporation or a facsimile thereof is affixed to all certificates
for shares prior to the issuance thereof and to all documents, the
execution of which on behalf of the Corporation under its seal is
duly authorized in accordance with the provisions of these Bylaws;
(d) keep or cause to be kept a register of the post office address
of each stockholder which shall be furnished by such stockholder;
(e) have general charge of other stock transfer books of the
Corporation; and (f) in general, perform all duties normally
incident to the office of the Secretary and such other duties as
from time to time may be assigned to him or her by the Chairman of
the Board, the President or the Board of Directors.
SECTION
6.11.
Treasurer. The Treasurer shall:
(a) have charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for monies
due and payable to the Corporation from any source whatsoever and
deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected
in accordance with the provisions of Section 7.3 of these Bylaws;
and (b) in general, perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be
assigned to him or her by the Board of Directors or the President.
If required by the Board of Directors, the Treasurer shall give a
bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall
determine.
SECTION
6.12.
Interim Officer Status. Any
office of the Corporation may be designated by the Board of
Directors as interim, and such interim status shall be on such
terms and for such duration as may be designated by the Board of
Directors.
ARTICLE 7
EXECUTION
OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
SECTION
7.1.
Contracts. Subject to the
provisions of Section 6.1, the Board of Directors may authorize any
officer, officers, agent or agents to enter into any contract or
execute and deliver an instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to
specific instances.
SECTION
7.2.
Checks, etc. All checks,
demands, drafts or other orders for the payment of money, and notes
or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or such
agent or agents of the Corporation, and in such manner, as shall be
determined by the Board of Directors.
SECTION
7.3.
Deposits. All funds of the
Corporation not otherwise employed shall be deposited from time to
time to the credit of the Corporation in such banks, trust
companies or other depositories as the President, the Treasurer or
the Chief Financial Officer may be empowered by the Board of
Directors to select or as the Board of Directors may
select.
SECTION
7.4.
Voting of Securities Owned by
Corporation. All stock and other securities of any other
corporation owned or held by the Corporation for itself, or for
other parties in any capacity, and all proxies with respect thereto
shall be executed by the person authorized to do so by resolution
of the Board of Directors or, in the absence of such authorization,
by any Principal Officer.
ARTICLE 8
SHARES OF STOCK
SECTION
8.1.
Certificates. The Corporation
is authorized to issue shares of common stock of the corporation in
certificated or uncertificated form. The shares of the common stock
of the Corporation shall be registered on the books of the
corporation in the order in which they shall be issued. Within a
reasonable time after the issuance or transfer of uncertificated
stock, the Corporation shall send, or cause to be sent, to the
record owner thereof a written statement setting forth the name of
the Corporation, the name of the shareholder, the number and class
of shares, and a summary of the designations, relative rights,
preferences, and limitations applicable to such class of shares and
the variations in rights, preferences, and limitations determined
for each series within a class (and the authority of the Board of
Directors to determine variations for future series), and a full
statement of any restrictions on the transfer or registration of
such shares. Each stock certificate must set forth the same
information or, alternatively, may state conspicuously on its front
or back that the corporation will furnish the shareholders a full
statement of this information on request and without
charge
SECTION
8.2.
Lost Certificates. The Board of
Directors may direct that a new certificate or certificates (or
uncertificated shares in lieu of a new certificate) be issued in
place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates (or
uncertificated shares in lieu of a new certificate), the Board of
Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as it shall
require or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate or certificates alleged
to have been lost, stolen or destroyed, or both.
SECTION
8.3.
Registered Stockholders. The
Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and,
accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of
Nevada.
ARTICLE 9
DIVIDENDS
SECTION
9.1.
Declaration. Dividends upon the
capital stock of the Corporation, subject to the provisions of the
Articles of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of capital
stock, subject to the provisions of the Articles of
Incorporation.
SECTION
9.2.
Reserve. Before 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, in its absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property
of the Corporation, or for such other purpose as the Board of
Directors shall think conducive to the interests of the
Corporation, and the Board of Directors may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE 10
LIMITATION ON LIABIILTY AND INDEMNIFICATION1
SECTION
10.1
No director or
officer shall be personally liable to the Corporation or its
shareholders for monetary damages for any breach of fiduciary duty
by such director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by
applicable law: (i) for acts or omissions not in good faith or
which involve intentional misconduct, fraud or a knowing violation
of law, or (ii) for any transaction from which the director derived
an improper personal benefit. If the NRS is hereafter amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by applicable law.
No amendment to or repeal of this Section shall apply to or have
any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
SECTION
10.2
The Corporation
shall, to the maximum extent permitted under applicable law, and
except as set forth below, indemnify, hold harmless and, upon
request, advance expenses to each person (and the heirs, executors
or administrators of such person) who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or
she is or was, or has agreed to become, a director or officer of
the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer or trustee
of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, including
any employee benefit plan (any such person being referred to
hereafter as an “Indemnitee”), or by reason of any
action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him or her or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he or
she acted in good faith and in a manner he or she 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 his or her conduct
was unlawful. Notwithstanding anything to the contrary in this
Section, the Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with any action, suit, proceeding,
claim or counterclaim, or part thereof initiated by the Indemnitee
unless the initiation thereof was approved by the Board of
Directors.
SECTION
10.3
Advance of Expenses.
Notwithstanding any other provisions of the Articles of
Incorporation, these Bylaws, or any agreement, vote of stockholder
or disinterested directors, or arrangement to the contrary, the
Corporation may, at the determination of the Board, advance payment
of expenses incurred by an Indemnitee in advance of the final
disposition of any matter only upon receipt of an undertaking by or
on behalf of the Indemnitee to repay all amounts so advanced in the
event that it shall ultimately be determined that the Indemnitee is
not entitled to be indemnified by the Corporation as authorized in
this Section. Such undertaking may be accepted without reference to
the financial ability of the Indemnitee to make such
repayment.
SECTION
10.4
Subsequent Amendment. No
amendment, termination or repeal of this Article 10 or of the
relevant provisions of Chapter 78 of the NRS or any other
applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring
prior to the final adoption of such amendment, termination or
repeal.
SECTION
10.5
Other Rights. The Corporation
may, to the extent authorized from time to time by the Board of
Directors, grant indemnification rights to other employees or
agents of the Corporation or other persons serving the Corporation
and such rights may be equivalent to, or greater or less than,
those set forth in this Section.
SECTION
10.6
Reliance. Persons who after the
date of the adoption of this provision become or remain directors
or officers of the Corporation or who, while a director or officer
of the Corporation, become or remain a director, officer, employee
or agent of a subsidiary, shall be conclusively presumed to have
relied on the rights to indemnity, advance of expenses and other
rights contained in this Section in entering into or continuing
such service. The rights to indemnification and to the advance of
expenses conferred in this Section shall apply to claims made
against an Indemnitee arising out of acts or omissions which
occurred or occur both prior and subsequent to the adoption
hereof.
SECTION
10.7
Merger or Consolidation. If the
Corporation is merged into or consolidated with another corporation
and the Corporation is not the surviving corporation, the surviving
corporation shall assume the obligations of the Corporation under
this Section with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions,
transactions or facts occurring prior to the date of such merger or
consolidation,
SECTION
10.8
Insurance. The Corporation
shall have the power to purchase and maintain insurance on behalf
of any person who is or was, or has agreed to become, a director,
officer, employee or agent of the Corporation, or is or was
serving, or has agreed to serve, at the request of the Corporation
as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust or other enterprise,
including any employee benefit plan, against all expenses
(including attorney's fees) judgments, fines or amounts paid in
settlement incurred by such person in any such capacity or arising
out of his or her status as such, whether or not the Corporation
would have the power to indemnify him or her against such expenses
under Chapter 78 of the NRS.
SECTION
10.9
Savings Clause. If this Article
10 or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses,
including attorneys’ fees, judgments, fines and amounts paid
in settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including
an action by or in the right of the Corporation, to the fullest
extent permitted by any applicable portion of this Article 10 that
shall not have been invalidated and to the fullest extent permitted
by applicable law.
SECTION
10.10
Contested Director
Indemnification. Notwithstanding anything to the contrary
contained in these Bylaws, a director who was elected in any
Contested Election who is not a continuing director shall not be
entitled to any indemnification or advancement of expenses unless
and until a majority of the continuing directors vote that the
indemnification provisions set forth in this Article 10 shall apply
to such newly elected director.
ARTICLE 11
MISCELLANEOUS
SECTION
11.1.
Books. The books of the
Corporation may be kept within or without the State of Nevada
(subject to any provisions contained in the NRS) at such place or
places as may be designated from time to time by the Board of
Directors.
SECTION
11.2.
Fiscal Year. The fiscal year of
the Corporation shall be such fiscal year as may be designated by
the Board of Directors.
SECTION
11.3
Forum Selection. Unless the
Corporation consents in writing to the selection of an alternative
forum, a state or federal court located in the City and County of
Los Angeles, California shall be the sole and exclusive forum for
(i) any derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim for breach of a
fiduciary duty owed by any director, officer or other employee of
the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any actions asserting a claim arising pursuant
to any provision of the NRS, the Articles of Incorporation or these
Bylaws, in each case as amended, or (iv) any action asserting a
claim governed by the internal affairs doctrine, in each such case
subject to such court having personal jurisdiction over the
indispensable parties named as defendants therein. 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 consented to the provisions of this Section 11.3.
ARTICLE 12
AMENDMENTS
SECTION
12.1
Amendment by Stockholders. The
stockholders of the Corporation may alter, amend, repeal or the
remove these Bylaws or any portion thereof only by the affirmative
vote of the Requisite Percent at a meeting of the stockholders,
duly called; provided, however, that no such change to any Bylaw
shall alter, modify, waive, abrogate or diminish the
Corporation’s obligation to provide the indemnity called for
by Article 10 of these Bylaws, the Articles of Incorporation or
applicable law.
SECTION
12.2
Amendment by the Board of
Directors. Notwithstanding Section 12.1, the Board of
Directors may, by majority vote of those present at any meeting at
which a quorum is present, alter, amend or repeal these Bylaws or
any portion thereof, or enact such other Bylaws as in their
judgment may be advisable for the regulation of the conduct of the
affairs of the Corporation.
2455580v.4