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| 8-K - CURRENT REPORT - SOLLENSYS CORP. | sols_8k.htm |
Exhibit 3.1
AMENDED AND RESTATED BYLAWS OF
Sollensys Corp.
a Nevada corporation
Adopted
August 5, 2020
1.
Offices. Sollensys Corp. (the
“Corporation”) may have an office or offices, and keep
the books and records of the Corporation, except as may otherwise
be required by applicable law, at such other place or places,
either within or without the State of Nevada, as the Board may from
time to time determine or the business of the Corporation may
require.
2.
Meetings of Stockholders.
2.1.
Annual Meetings. The annual meetings of
stockholders for the election of directors and for such other
business as may be stated in the notice of the meeting shall be
held at such time and date and place as the Board, by resolution,
shall determine and as set forth in the notice of the meeting and
shall be held at such place, either within or without the State of
Nevada. If the date of the annual meeting shall fall upon a legal
holiday, the meeting shall be held on the next succeeding business
day.
2.2.
Deferred Meeting for Election of Directors,
etc. If the annual meeting of stockholders for the election
of directors and the transaction of other business is not held
within the time specified in Section 2.1, the Board shall call a
special meeting of stockholders for the election of directors and
the transaction of other business as soon thereafter as
convenient.
2.3.
Other Special Meetings. A special
meeting of stockholders (other than a special meeting for the
election of directors), unless otherwise prescribed by statute, may
only be called by the Board and may be called at any time by the
Board. At any special meeting of stockholders, only such business
may be transacted as is related to the purpose(s) of such meeting
set forth in the notice thereof given pursuant to Section 2.5 or in
any waiver of notice thereof given pursuant to Section
2.6.
2.4.
Fixing Record Date. For the purpose of
determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or for the purpose of determining stockholders entitled to receive
payment of any dividend or other distribution or 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 Board may fix, in advance, a date as of
the record date for any such determination of stockholders. Such
date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting nor more than sixty (60) days prior
to any other action. If no such record date is fixed:
(a)
The record date
for the determination of stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if
no notice is given or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is
held.
(c)
The record date for
determining stockholders for any purpose other than those specified
in Sections 2.4(a) and Section 2.4(b) shall be at the close of
business on the day on which the Board adopts the resolution
relating thereto.
When a
determination of stockholders entitled to notice of, or to vote at,
any meeting of stockholders has been made as provided in this
Section 2.4, such determination shall apply to any adjournment
thereof, unless the Board fixes a new record date for the adjourned
meeting.
2.5.
Notice of Meetings of Stockholders.
Location. Except as otherwise provided in Section 2.4 and
Section 2.6, whenever under any provision of the Nevada Revised
Statutes (as the same may be amended and supplemented from time to
time, and including any successor provision thereto, the
“NRS”), the Articles of Incorporation of the
Corporation (as the same may be amended, supplemented and/or
restated from time to time, the “Articles”) or these
Bylaws, stockholders are required or permitted to take any action
at a meeting, written notice shall be given stating the place, date
and hour of the meeting and, in the case of a special meeting, the
purpose(s) for which the meeting is called. Except as otherwise
provided by any provision of the NRS, a copy of the notice of any
meeting shall be given, personally or by mail, not less than 10 nor
more than 60 days before the date of the meeting, to each
stockholder entitled to notice of, or to vote at, such meeting. If
mailed, such notice shall be deemed to be given when deposited in
the United States Mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the
notice required by this Section 2.5 has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment
is taken and, at the adjourned meeting, any business may be
transacted that might have been transacted at the meeting
originally called. If, however, the adjournment is for more than 60
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. The Board may designate the place of meeting for any
meeting of Stockholders. If no designation is made by the Board,
the place of meeting shall be the principal executive offices of
the Corporation. The Board may, in its sole discretion, determine
that the meeting shall not be held at any place, but may instead be
held solely by means of remote communication as authorized by the
NRS
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2.6.
Waivers of Notice. Whenever notice is
required to be given to the stockholders under any provision of the
NRS, or the Articles or these Bylaws, a written waiver thereof,
signed by a stockholder entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice.
Attendance of a stockholder at a meeting shall constitute a waiver
of notice of such meeting, except when the stockholder attends a
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
of the stockholders need be specified in any written waiver of
notice.
2.7.
Quorum of Stockholders. Adjournment.
Postponement. The holders of a 33.33% of the voting power,
present, in person or represented by proxy, shall be necessary and
sufficient to constitute a quorum for the transaction of any
business at such meeting, except where otherwise provided by any
provision of the NRS. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent
withdrawal of any stockholders. The Chairman, or the holders of a
majority of the shares of stock present in person or represented by
proxy at any meeting of stockholders, including an adjournment
meeting, whether or not a quorum is present, may adjourn such
meeting to another time and place. Any previously scheduled meeting
of stockholders may be postponed, and any previously scheduled
special meeting of Stockholders may be canceled, by the Board upon
public notice given prior to the time previously scheduled for such
meeting of stockholders.
2.8.
Voting. Proxies.
(a)
Unless otherwise
provided in the Articles, every stockholder of record shall be
entitled at every meeting of stockholders to one vote for each
share of capital stock standing in his name on the record of
stockholders determined in accordance with Section 2.4. If the
Articles provide for more or less than one vote for any share on
any matter, every reference in these Bylaws or any provision of the
NRS, to a majority or other proportion of stock shall refer to such
majority to other proportion of the votes of such stock. The
provisions of the NRS shall apply in determining whether any shares
of capital stock may be voted and the persons, if any entitled to
vote such shares, but the Corporation shall be protected in
treating the persons in whose names shares of capital stock stand
on the record of stockholders as owners thereof for all
purposes.
(b)
In any uncontested
election of directors, each person receiving a majority of the
votes cast shall be deemed elected. For purposes of this paragraph,
a ‘majority of the votes cast’ shall mean that the
number of votes cast ‘for’ a director must exceed the
number of votes cast ‘against’ that director (with
‘abstentions’ and ‘broker non-votes’ not
counted as a vote cast with respect to that director). In any
contested election of directors, the persons receiving a plurality
of the votes cast, up to the number of directors to be elected in
such election, shall be deemed elected. The Board may, but need
not, establish policies and procedures regarding the nomination,
election and resignation of directors, which policies and
procedures may: (i) include a condition to nomination by the Board
for election or re-election as a director that an individual agree
to tender, if elected or re-elected, an irrevocable offer of
resignation conditioned on: (A) failing to receive the required
vote for re-election at the next meeting at which such person would
face re-election and (B) acceptance of the resignation by the
Board, (ii) require: (A) if one exists, the Corporation’s
nominating and governance committee or other committee designated
by the Board (the “Nominating and Governance
Committee”) to make a recommendation to the Board on whether
to accept or reject the resignation, or whether other action should
be taken and (B) the Board to act on the Nominating and Governance
Committee’s recommendation and publicly disclose its decision
and the rationale behind it within 90 days, to the extent
practicable, from the date of the certification of the election
results. A “contested election” is one in which: (i)
the Secretary receives a notice that a Stockholder has nominated a
person for election to the Board in compliance with the advance
notice requirements for stockholder nominees for director set forth
in Section 2.9 and (ii) such nomination has not been withdrawn by
such stockholder on or before the 10th day before the
Corporation first mails its notice of meeting for such meeting to
the stockholders. An “uncontested election” is any
election other than a contested election. All elections of
directors shall be by written ballot unless otherwise provided in
the Articles.
(c)
As to each matter
submitted to a vote of the stockholders (other than the election of
directors), except as otherwise provided by law or by the Articles
or by these Bylaws, such matter shall be decided by a majority of
the votes cast on such matter.
(d)
In voting on any
other question on which a vote by ballot is required by law or is
demanded by any stockholder entitled to vote (other than election
of directors), the voting shall be by ballot. Each ballot shall be
signed by the stockholder voting or by his proxy and shall state
the number of shares voted. Every stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize another
person(s) to act for him by proxy. Any proxy to be used at a
meeting of stockholders must be delivered to the Secretary of the
Corporation or his or her representative at the principal executive
offices of the Corporation at or before the time of the meeting.
The validity and enforceability of any proxy shall be determined in
accordance with the provisions of the NRS. The Chairman shall fix
and announce at the meeting the date and time of the opening and
the closing of the polls for each matter upon which the
stockholders will vote at the meeting.
2.9.
Nomination of Directors. Only persons
who are nominated in accordance with the procedures set forth in
these Bylaws shall be eligible for election as directors.
Nominations of persons for election to the Board may be made at a
meeting of stockholders at which directors are to be elected only
(a) by or at the direction of the Board or (b) by any stockholder
of the Corporation entitled to vote for the election of directors
at a meeting who complies with the notice procedures set forth in
Section 2.10.
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(a)
For director
nominations or other business to be properly brought before an
annual meeting of stockholders by a stockholder, a
stockholder’s notice must include the following information
and/or documents, as applicable: (A) the name and address of the
stockholder giving the notice, as they appear on the
Corporation’s books, and of the beneficial owner of stock of
the Corporation, if any, on whose behalf such nomination or
proposal of other business is made (such beneficial owner, the
“Beneficial Owner”). (B) representations that, as of
the date of delivery of such notice, such stockholder is a holder
of record of stock of the Corporation and is entitled to vote at
such meeting and intends to appear in person or by proxy at such
meeting to propose and vote for such nomination and any such other
business. (C) as to each person whom the stockholder proposes to
nominate for election or re-election as a director (a
“Stockholder Nominee”): (1) all information relating to
such Stockholder Nominee that is required to be disclosed in
solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934 (as
amended from time to time, the “Exchange Act”) or any
successor provision thereto, including such Stockholder
Nominee’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected and
to being named in the Corporation’s proxy statement and form
of proxy if the Corporation so determines, (2) a statement whether
such Stockholder Nominee, if elected, intends to tender, promptly
following such Stockholder Nominee’s election or re-election,
an irrevocable offer of resignation effective upon such Stockholder
Nominee’s failure to receive the required vote for
re-election at the next meeting at which such Stockholder Nominee
would face re-election and upon acceptance of such resignation by
the Board. and (3) such other information as may be reasonably
requested by the Corporation. (D) as to any other business that the
stockholder proposes to bring before the meeting: (1) a brief
description of such business, (2) the text of the proposal
(including the text of any resolutions proposed for consideration
and, if such business includes a proposal to amend these Bylaws,
the text of the proposed amendment) and (3) the reasons for
conducting such business at the meeting. and (E) in all cases: (1)
the name of each individual, firm, corporation, limited liability
company, partnership, trust or other entity (including any
successor thereto, a “Person”) with whom the
stockholder, any Beneficial Owner, any Stockholder Nominee and the
respective affiliates and associates (as defined under Regulation
12B under the Exchange Act or any successor provision thereto) of
such stockholder, Beneficial Owner and/or Stockholder Nominee (each
of the foregoing, including, for the avoidance of doubt, the
Stockholder, Beneficial Owner and/or Stockholder Nominee, a
“Stockholder Group Member”) either is acting in concert
with respect to the Corporation or has any agreement, arrangement
or understanding (whether written or oral) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy
given to such Person in response to a public proxy solicitation
made generally by such Person to all holders of common stock of the
Corporation) or disposing of any capital stock of the Corporation
or to cooperate in obtaining, changing or influencing the control
of the Corporation (except independent financial, legal and other
advisors acting in the ordinary course of their respective
businesses) (each Person described in this clause (1), including
each Stockholder Group Member, a “Covered Person”), and
a description, and, if in writing, a copy, of each such agreement,
arrangement or understanding, (2) a list of the class, series and
number of shares of capital stock of the Corporation that are
beneficially owned or owned of record by each Covered Person,
together with documentary evidence of such record or beneficial
ownership, (3) a list of all derivative securities (as defined in
Rule 16a-1 under the Exchange Act or any successor provision
thereto) and other derivatives or similar arrangements to which any
Covered Person is a counterparty and relating to any shares of
capital stock of the Corporation, a description of all economic
terms of all such derivative securities and other derivatives or
similar arrangements and copies of all agreements and other
documents relating to each of such derivative securities and other
derivatives or similar arrangements, (4) a list of all transactions
by any Covered Person involving any shares of capital stock of the
Corporation or any derivative securities (as defined under Rule
16a-1 under the Exchange Act or any successor provision thereto) or
other derivatives or similar arrangements related to any shares of
capital stock of the Corporation entered into or consummated within
60 days prior to the date of such notice, (5) details of all other
material interests of each Covered Person in such nomination or
proposal or shares of capital stock of the Corporation (including
any rights to dividends or performance-related fees based on any
increase or decrease in the value of such shares of capital stock)
and (6) a representation as to whether any Covered Person intends
or is part of a group which intends to deliver a proxy statement
and/or form of proxy to, in the case of a nomination or
nominations, at least the percentage of the Corporation’s
outstanding capital stock reasonably believed by the Covered Person
to be sufficient to elect the nominee or nominees proposed to be
nominated by the stockholder and, in the case of a proposal,
holders of at least the percentage of the Corporation’s
outstanding capital stock required to elect any Stockholder Nominee
or approve such proposal (such representation, the
“Solicitation Representation”).
(b)
A notice
delivered by or on behalf of any Stockholder under this Section
2.10 shall be deemed to be not in compliance with this Section 2.10
and not be effective if: (x) such notice does not include all of
the information, documents and representations required under this
Section 2.10, (y) after delivery of such notice, any information or
document required to be included in such notice changes or is
amended, modified or supplemented, as applicable, prior to the date
of the relevant meeting and such information and/or document is not
delivered to the Corporation by way of a further written notice as
promptly as practicable following the event causing such change in
information or amendment, modification or supplement, as
applicable, and in any case where such event occurs within 45 days
of the date of the relevant meeting, within five business days
after such event or (z) any Covered Person does not act in
accordance with the representation set forth in the Solicitation
Representation. provided, however, that the Board shall have the
authority to waive any such non-compliance if the Board determines
that such action is appropriate in the exercise of its fiduciary
duties.
(c)
Notwithstanding
Section 2.10(b), in the event that the number of directors to be
elected to the Board is increased effective at the next annual
meeting and there is no Public Announcement (as defined below)
specifying the size of the increased Board made by the Corporation
at least 100 days prior to the first anniversary of the preceding
year’s annual meeting, a stockholder’s notice required
by this Section 2.10 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase,
if it is delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the 10th
day following the day on which such Public Announcement is first
made by the Corporation and such notice otherwise complies with the
requirements of this Section 2.10. To be timely, a
stockholder’s notice must be delivered to the Secretary at
the principal executive offices of the Corporation not less than 90
days nor more than 120 days prior to the first anniversary of the
preceding year’s annual meeting. provided, however, that in
the event that the date of the annual meeting is advanced by more
than 30 days, or delayed by more than 90 days, from such
anniversary date, or if no annual meeting was held in the preceding
year, notice by a stockholder to be timely must be so delivered not
earlier than the 120th day prior to such
annual meeting and not later than the close of business on the
later of the 90th day prior to such
annual meeting and the 10th day following the
day on which the Public Announcement of the date of such meeting is
first made by the Corporation. In no event shall the Public
Announcement of an adjournment or postponement of an annual meeting
commence a new time period for the giving of a Stockholder’s
notice as described in this Section 2.10.
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(d)
“Public
Announcement” shall mean 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 Section 13, Section 14 or Section 15(d) of the Exchange
Act or any document delivered to all Stockholders (including any
quarterly income statement).
2.11.
Selection and Duties of Inspectors at Meeting
of Stockholders. The Board, in advance of any meeting of
stockholders, may appoint one or more inspectors to act at the
meeting or any adjournment thereof. If inspectors are not so
appointed, the person presiding at such meeting may and, on the
request of any stockholder entitled to vote thereat shall, appoint
one or more inspectors. In case any person appointed fails to
appear or act, the vacancy may be filled by appointment made by the
Board in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The
inspector(s) shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine
the result, and shall do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On the request
of the person presiding at the meeting or any stockholder entitled
to vote thereat, the inspector(s) shall make a report in writing of
any challenge, question or matter determined by him or them and
execute a certificate of any fact found by him or them. Any report
or certificate made by the inspector(s) shall be prima facie
evidence of the facts stated and of the vote as certified by him or
them.
2.12.
Organization. At every meeting of
stockholders, the Chief Executive Officer or, in the absence of the
Chief Executive Officer, a President or a Vice President, and in
case more than one Vice President shall be present, that Vice
President designated by the Board (or in the absence of any such
designation, the most senior Vice President, based on age, present)
shall act as chairman of the meeting. In case none of the officers
above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, may be chosen by a majority of the
voting power, which includes the voting power which is present in
person or represented by proxy and entitled to vote at the
meeting.
2.13.
Order of Business. The order of
business at all meetings of stockholders shall be as determined by
the chairman of the meeting, but the order of business to be
followed at any meeting at which a quorum is present may be changed
by a majority of the votes cast at such meeting by the holders of
shares of capital stock present, in person or represented by proxy
and entitled to vote at the meeting.
2.14.
Action Without Meeting. Unless
otherwise provided by the Articles, any action required to be taken
at any annual or special meeting of stockholders, or any action
which may be taken at any annual or special meeting, may be taken
without a meeting, without prior notice and without a vote if a
consent in writing setting forth the action so taken is signed by
the stockholders holding at least a majority of the voting power,
except that if a different proportion of voting power is required
for such action at a meeting, then that proportion of written
consents is required. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the date the earliest dated
consent is delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take action
are delivered to the Corporation in the manner prescribed herein.
An electronic transmission consenting to an action to be taken and
transmitted by a stockholder or proxyholder, or by a person or
persons authorized to act for a stockholder or proxyholder, shall
be deemed to be written, signed and dated for the purposes of this
Section 2.14 to the extent permitted by law. Any such consent shall
be delivered in accordance with the NRS. Prompt notice of the
taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who
have not consented in writing or electronic transmission and who,
if the action had been taken at a meeting, would have been entitled
to notice of the meeting if the record date of such meeting had
been the date that written consents signed by a sufficient number
of stockholders or members to take the action were delivered to the
Corporation as provided by law.
2.15.
Copies, Etc. Any copy, facsimile or
other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided
that such copy, facsimile or other reproduction shall be a complete
reproduction of the entire original writing
3.
Directors.
3.1.
Number and Term. Except as provided by
any provision of the NRS, the number of directors shall two (2) or
such other number of persons as the majority of the full Board, by
resolution, may from time to time determine. The directors shall,
except for filling vacancies (whether resulting from an increase in
the number of directors, resignations, removals or otherwise), be
elected at the annual meeting of the stockholders and each director
shall be elected to serve until his successor is elected and
qualifies. Directors need not be stockholders. No decrease in the
number of directors constituting the Board shall shorten the term
of any incumbent director. The members of the Board shall elect a
chairman of the Board (the “Chairman”) by a vote of a
majority vote of all directors (which may include the vote of the
person so elected).
3.2.
Resignations. Any director, member of a
committee or other officer may resign at any time. Such resignation
shall be made in writing and shall take effect at the time
specified therein and, if no time be specified, at the time of its
receipt by the Chief Executive Officer or Secretary. The acceptance
of a resignation shall not be necessary to make it
effective.
3.3.
Vacancies. Except as set forth in
Section 3.4, if the office of any director, member of a committee
or other officer becomes vacant (whether resulting from an increase
in the number of directors, resignations, removals or otherwise),
the remaining directors in office, though less than a quorum, by a
majority vote, may appoint any qualified person to fill such
vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
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3.4.
Removal. Any director(s) may be removed
either for or without cause at any time by the affirmative vote of
the holders of two-thirds (2/3) of the voting power of the issued
and outstanding stock entitled to vote, at a special meeting of the
stockholders called for that purpose and the vacancies thus created
may be filled, at the meeting held for the purpose of removal, by
the affirmative vote of a majority in interest of the stockholders
entitled to vote.
3.5.
Increase or Decrease of Number. The
number of directors may be increased or decreased only by the
affirmative vote of a majority of the directors, though less than a
quorum. Any newly created directorships may be filled in the same
manner as a vacancy.
3.6.
Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the
Board, except as otherwise provided by applicable law or by the
Articles. If any such provision is made in the Articles, the powers
and duties imposed upon the Board by applicable law shall be
exercised or performed to such extent and by such person or persons
as shall be provided in the Articles. The Board shall exercise all
of the powers of the Corporation except such as are by law, or by
the Articles or by these Bylaws, conferred upon or reserved to the
stockholders.
3.7.
Conference Call. Members of the Board
or any committee designated by such Board may participate in a
meeting of the Board or such committee by means of telephone
conference or similar communication equipment by means of which all
persons participating in the meeting can hear each other and
participation pursuant to this Section 3.7 shall constitute
presence at such meeting.
3.8.
Committees. The Board may, by
resolution(s) passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one (1) or
more of the directors of the Corporation. The Board may designate
one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member or such
committee or committees, the member or members thereof present at
any such meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board or in these Bylaws, shall
have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Corporation, but
no such committee shall have the power or authority in reference to
amending the Articles, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation’s
property and assets, recommending to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, or amending
these Bylaws of the Corporation and, unless the resolution, these
Bylaws or the Articles expressly so provide, no such committee
shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
(a)
On the day when,
and at the place where, the annual meeting of stockholders for the
election of directors is held, and as soon as practicable
thereafter, the Board may hold its annual meeting, without notice
of such meeting, for the purposes or organization, election of
officers and transaction of other business. The annual meeting of
the Board may be held at any other time and place specified in a
notice given as provided in this Section 3.9 for special meetings
of the Board or in a waiver of notice thereof.
(b)
Regular meetings of
the directors may be held without notice at such place and time as
shall be determined from time to time by resolution of the
directors.
(c)
Special meetings of
the Board may be called by the Chief Executive Officer or by the
Secretary on the written request of any two or more directors on at
least ten (10) days’ notice to each director and shall be
held at such place(s) as may be determined by the directors, or as
shall be stated in the call of the meeting.
(d)
Anything in these
Bylaws or in any resolution adopted by the Board to the contrary
notwithstanding, notice of any meeting of the Board need not be
given to any director who submits a signed waiver of such notice,
whether before or after such meeting, or who attends such meeting
without protesting, prior thereto or at its commencement, the lack
of notice to him.
3.10.
Quorum. A majority of the directors in
office from time to time shall constitute a quorum for the
transaction of business. If at any meeting of the Board there shall
be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum is obtained
and no further notice thereof need be given, other than by
announcement at the meeting which shall be so
adjourned.
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3.11.
Compensation. Unless otherwise
restricted by the Articles, the Board shall have the authority to
fix the compensation of the directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board
and may be paid a fixed sum for attendance at each meeting of the
Board or paid a stated salary or paid other compensation as
director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed
compensation for attending committee meetings.
3.12.
Action Without Meeting. Any action
required or permitted to be taken at any meeting of the Board, or
of any committee thereof, may be taken without a meeting if a
written consent thereto is signed by all members of the Board, or
of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or
committee.
3.13.
Telephone Meeting. Any one or more
members of the Board or any committee thereof may participate in a
meeting of the Board or such committee by means of a conference
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at
such meeting.
3.14.
Annual Report. As soon as practicable
after the close of each fiscal year, a report of the business and
affairs of the Corporation to the shareholders shall be made under
the direction of the Board, unless the Board determines, in its
reasonable discretion, that such a report is not reasonably
required.
4.
Officers.
4.1.
Officers. The Board may elect or
appoint a Chief Executive Officer and such other officers as it may
determine. The Board may designate one or more Vice Presidents as
Executive Vice Presidents and may use descriptive words or phrases
to designate the standing, seniority or area of special competence
of the Vice Presidents elected or appointed by it. Each officer
shall hold his office until his successor is elected and qualified
or until his earlier death, resignation or removal in the manner
provided in Section 4.2. Any two or more offices may be held by the
same person. The Board may require any officer to give a bond or
other security for the faithful performance of his duties, in such
amount and with such sureties as the Board may determine. All
officers as between themselves and the Corporation shall have such
authority and perform such duties in the management of the
Corporation as may be provided in these Bylaws or as the Board may
from time to time determine.
4.2.
Removal of Officers. Any officer
elected or appointed by the Board may be removed by the Board with
or without cause. The removal of an officer without cause shall be
without prejudice to his contract rights, if any. The election or
appointment of an officer shall not of itself create contract
rights.
4.3.
Resignations. Any officer may resign at
any time by notifying the Board, the Chief Executive Officer or the
Secretary in writing. Such resignation shall take effect at the
date of receipt of such notice or at such later time as is therein
specified and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The
resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any.
4.4.
Vacancies. A vacancy in any office
because of death, resignation, removal, disqualification or any
other cause shall be filled for the unexpired portion of the term
in the manner prescribed in these Bylaws for the regular election
or appointment to such office.
4.5.
Compensation. Salaries or other
compensation of the officers may be fixed from time to time by the
Board. No officer shall be prevented from receiving a salary or
other compensation by reason of the fact that he is also a
director.
4.6.
Chief Executive Officer. The Chief
Executive Officer shall have general supervision and direction of
the business and affairs of the Corporation, subject to control of
the Board, and shall report directly to the Board, and shall have
supervisory responsibility over officers operating and discharging
their responsibilities. The Chief Executive Officer shall perform
all such other duties which are commonly incident to the capacity
of Chief Executive Officer or which are delegated to him or her by
the Board.
4.7.
President. The President shall have
general supervision and direction of the business and affairs of
the Corporation as directed by the Chief Executive Officer. The
President shall, if present, preside at all meetings of the
stockholders. He may, with the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of the Corporation. He may sign and execute, in the name
of the Corporation, deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by these
Bylaws to some other officer or agent of the Corporation, or shall
be required by law otherwise to be signed or executed, and, in
general, he shall perform all duties incident to the office of
President and such other duties as from time to time may be
assigned to him by the Board. If there is no President, the Chief
Executive Officer shall perform the President’s
functions.
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4.8.
Principal Financial Officer. The
Principal Financial Officer shall perform all the powers and duties
of the office of the principal financial officer and in general
have overall supervision of the financial operations of the
Corporation. The Principal Financial Officer shall, when requested,
counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief
Executive Officer or as the Board may from time to time determine.
If there is no Principal Financial Officer, the Chief Executive
Officer shall perform the Principal Financial Officer’s
functions.
4.9.
Executive Vice Presidents. At the
request of the President or, in his absence, at the request of the
Board, the Executive Vice Presidents shall (in such order as may be
designated by the Board or, in the absence of any such designation,
in order of seniority based on age) perform all of the duties of
the President and, so acting, shall have all the powers of and be
subject to all restrictions upon the President. Any Executive Vice
President may also, with the Secretary or the Treasurer or an
Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of the Corporation, may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other
instruments authorized by the Board, except in cases where the
signing and execution thereof shall be expressly delegated by the
Board or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or
executed, and shall perform such other duties as from time to time
may be assigned to him by the Board or the President.
4.10.
Secretary. The Secretary, if present,
shall act as Secretary of all meetings of the stockholders and of
the Board and shall keep the minutes thereof in the proper book(s)
to be provided for that purpose. he shall see that all notices
required to be given by the Corporation are duly given and served.
he may, with the Chief Executive Officer or a Vice President, sign
certificates for shares of the Corporation. he shall be custodian
of the seal of the Corporation, if any, and may seal with the seal
of the Corporation or a facsimile thereof, if any, all certificates
for shares of capital stock of the Corporation and all documents.
he shall have charge of the stock ledger and also of the other
books, records and papers of the Corporation relating to its
organization and management as a Corporation and shall see that the
reports, statements and other documents required by law are
properly kept and filed. and shall, in general, perform all duties
incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the Board or the Chief
Executive Officer. If there is no Secretary, the Chief Executive
Officer shall perform the Secretary’s functions.
4.11.
Treasurer. The Treasurer shall have
charge and custody of, and be responsible for, all funds,
securities and notes of the Corporation. receive and give receipts
for monies due and payable to the Corporation from any sources
whatsoever. deposit all such monies in the name of the Corporation
in such banks, trust companies or other depositories as shall be
selected in accordance with these Bylaws. against proper vouchers,
cause such funds to be disbursed by checks or drafts on the
authorized depositories of the Corporation signed in such manner as
shall be determined in accordance with any provisions of these
Bylaws, and be responsible for the accuracy of the amounts of all
monies to disbursed. regularly enter or cause to be entered in
books to be kept by him or under his direction full and adequate
account of all monies received or paid by him for the account of
the Corporation. have the right to require, from time to time,
reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation
from the officers or agents transacting the same. render to the
Chief Executive Officer or the Board, whenever the Chief Executive
Officer or the Board, respectively, shall require him so to do, an
account of the financial conditions of the Corporation and of all
his transactions as Treasurer. exhibit at all reasonable times his
books of account and other records to any of the directors upon
application at the office of the Corporation where such books and
records are kept. and, in general, perform all duties incident to
the office of Treasurer and such other duties as from time to time
may be assigned to him by the Chief Executive Officer or the Board.
and he may sign with the Chief Executive Officer or a Vice
President certificates for shares of the capital stock of the
Corporation. If there is no Treasurer, the Chief Executive Officer
shall perform the Treasurer’s functions.
4.12.
Assistant Secretaries and Assistant
Treasurers. Assistant Secretaries and Assistant Treasurers
shall perform such duties as shall be assigned to them by the
Secretary or by the Treasurer, respectively, or by the Board or the
Chief Executive Officer. Assistant Secretaries and Assistant
Treasurers may, with the Chief Executive Officer or a Vice
President, sign certificates for shares of the
Corporation.
4.13.
Additional Matters. The Chief Executive
Officer, the President and the Principal Financial Officer of the
Corporation shall have the authority to designate employees of the
Corporation to have the title of Vice President, Assistant Vice
President, Assistant Treasurer, Assistant Controller or Assistant
Secretary. Any employee so designated shall have the powers and
duties determined by the officer making such designation. The
persons upon whom such titles are conferred shall not be deemed
officers of the Corporation unless elected by the
Board.
5.
Contracts, Checks, Drafts, Bank Accounts, etc.
5.1.
Execution of Contracts. The Board may
authorize any officer, employee or agent, in the name and on behalf
of the Corporation, to enter into any contract or execute and
satisfy any instrument, and any such authority may be general or
confined to specific instances, or otherwise limited.
7
5.2.
Loans. The Chief Executive Officer or
any other officer, employee or agent authorized by these Bylaws or
by the Board may effect loans and advances at any time for the
Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and
advances may make, execute and deliver promissory notes, bonds or
other certificates or evidence of indebtedness of the Corporation
and, when authorized by the Board to do so, may pledge and
hypothecate or transfer any securities or the property of the
Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to
specific instances or otherwise limited.
5.3.
Checks, Drafts, etc. All checks, drafts
and other orders for the payment of money out of the funds of the
Corporation and all notes or other evidence of indebtedness of the
Corporation shall be signed on behalf of the Corporation in such
manner as shall from time to time be determined by resolution of
the Board.
5.4.
Deposits. The funds of the Corporation
not otherwise employed shall be deposited from time to time to the
order of the Corporation in such banks, trust companies or other
depositories as the Board may select or as may be selected by an
officer, employee or agent of the Corporation to whom such power
may from time to time be delegated by the Board.
6.
Stocks and Dividends.
6.1.
Certificates Representing Shares. The
shares of the Corporation shall be represented by certificates in
such form (consistent with the provisions of the NRS) as shall be
approved by the Board. Such certificates shall be signed by the
Chief Executive Officer or the President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer and
may be sealed with the seal of the Corporation or a facsimile
thereof, if any. The signatures of the officers upon a certificate
may be facsimiles, if the certificate is countersigned by a
transfer agent or registered by a registrar other than the
Corporation itself or its employees. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has
been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is
issued, such certificate may, unless otherwise ordered by the
Board, be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date
of issue.
6.2.
Transfer of Shares. Transfers of shares
of capital stock of the Corporation shall be made only on the books
of the Corporation by the holder thereof or by his duly authorized
attorney appointed by a power of attorney duly executed and filed
with the Secretary or a transfer agent of the Corporation and on
surrender of the certificate(s) representing such shares of capital
stock properly endorsed for transfer and upon payment of all
necessary transfer taxes. Every certificate exchanged, returned or
surrendered to the Corporation shall be marked
“Cancelled”, with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the
Corporation. A person in whose name shares of capital stock shall
stand on the books of the Corporation shall be deemed the owner
thereof to receive dividends, to vote as such owner and for all
other purposes as respects the Corporation, its stockholders and
creditors for any purpose, except to render the transferee liable
for the debts of the Corporation to the extent provided by law,
until such transfer shall have been entered on the books of the
Corporation by an entry showing from and to whom
transferred.
6.3.
Registered Stockholders and Addresses of
Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its records as the
owner of shares of capital stock to receive dividends and to vote
as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares of capital stock
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
applicable law. Each stockholder shall designate to the Secretary
or transfer agent of the Corporation an address at which notices of
meetings and all other corporate notices may be given to such
person, and, if any stockholder fails to designate such address,
corporate notices may be given to such person by mail directed to
such person at such person’s post office address, if any, as
the same appears on the stock record books of the Corporation or at
such person’s last known post office address or as otherwise
provided by applicable law.
6.4.
Transfer and Registry Agents. The
Corporation may from time to time maintain one or more transfer
offices or agents and registry offices or agents at such place(s)
as may be determined from time to time by the Board.
6.5.
Lost, Destroyed, Stolen and Mutilated
Certificates. The holder of any shares shall immediately
notify the Corporation of any loss, destruction, theft or
mutilation of the certificate representing such shares and the
Corporation may issue a new certificate to replace the certificate
alleged to have been lost, destroyed, stolen or mutilated. The
Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his legal representatives, to
make proof satisfactory to the Board of such loss, destruction,
theft or mutilation and to advertise such fact in such manner as
the Board may require, and to give the Corporation and its transfer
agents and registrars, or such of them as the Board may require, a
bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnify the Corporation and its transfer
agents and registrars against any claim that may be made against
any of them on account of the continued existence of any such
certificate so alleged to have been lost, destroyed, stolen or
mutilated and against any expense in connection with such
claim.
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6.6.
Regulations. The Board may make rules
and regulations as it may deem expedient, not inconsistent with
these Bylaws or with the Articles, concerning the issue, transfer
and registration of certificates representing shares of its capital
stock.
6.7.
Restriction on Transfer of Stock. A
written restriction on the transfer or registration of transfer of
capital stock of the Corporation, if permitted by the provisions of
the NRS, and noted conspicuously on the certificate representing
such capital stock, may be enforced against the holder of the
restricted capital stock of any successor or transferee of the
holder including an executor, administrator, trustee, guardian or
other fiduciary entrusted with like responsibility for the person
or estate of the holder. Unless noted conspicuously on the
certificate representing such capital stock, a restriction, even
though permitted by the provisions of the NRS, as the same may be
amended and supplements, shall be ineffective except against a
person with actual knowledge of the restriction. A restriction on
the transfer or registration of transfer of capital stock of the
Corporation may be imposed either by the Articles or by an
agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall
be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital
stock are parties to an agreement or voted in favor of the
restriction. Except to the extent that the corporation has obtained
an opinion of counsel acceptable to the corporation that transfer
restrictions are not required under applicable securities laws, or
has otherwise satisfied itself that such transfer restrictions are
not required, all certificates representing shares of the
corporation shall bear a legend on the face of the certificate, or
on the reverse of the certificate if a reference to the legend is
contained on the face, which reads substantially as
follows:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR APPLICABLE STATE SECURITIES LAWS, AND NO
INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THIS
CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF
THESE SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION, OR (C) THIS CORPORATION
OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
6.8.
Dividends, Surplus, etc. Subject to the
provisions of the Articles and of law, the Board:
(a)
may declare and pay
dividends or make other distributions on the outstanding shares of
capital stock in such amounts and at such time to times as, in its
discretion, the conditions of the affairs of the Corporation shall
render advisable.
(b)
may use and apply,
in its discretion, any of the surplus of the Corporation in
purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants therefor, in accordance with law,
or any of its bonds, debentures, notes, scrip or other securities
or evidence of indebtedness. and
(c)
may set aside from
time to time out of such surplus or net profits such sum(s) as, in
its discretion, it may think proper, as a reserve fund to meet
contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the
Corporation, or for any other purpose it may think conducive to the
best interests of the Corporation.
6.9.
Control Share Acquisition. The
Corporation elects not to be governed by the provisions of Section
78.378 through Section 78.3793, inclusive, of the NRS, and such
provisions do not and shall not apply to the Corporation, with
respect to any acquisition of any interest, including any
controlling interest, in the Corporation by any person or
entity.
7.
Miscellaneous.
7.1.
Seal. The Board shall have the power by
resolution to adopt, make and use a corporate seal and to alter the
form of such seal from time to time.
7.2.
Fiscal Year. The fiscal year of the
Corporation shall be determined, and may be changed, by resolution
of the Board.
9
7.3.
Books and Records. The Corporation
shall: (1) Keep as permanent records minutes of all meetings of its
stockholders and the Board, a record of all actions taken by the
stockholders or the Board without a meeting, and a record of all
actions taken by a committee of the Board exercising the authority
of the Board on behalf of the Corporation. (2) Maintain appropriate
accounting records. (3) Maintain a record of its stockholders, in a
form that permits preparation of a list of the names and addresses
of all stockholders, in alphabetical order by class of shares
showing the number and class of shares held by each. provided,
however, such record may be maintained by an agent of the
Corporation. (4) Maintain its records in written form or in another
form capable of conversion into written form within a reasonable
time. and (5) Keep a copy of the following records at its principal
office: (a) the Articles as currently in effect. (b) these Bylaws
and all amendments thereto as currently in effect. (c) the minutes
of all meetings of stockholders and records of all action taken by
stockholders. (d) without a meeting, for the past three years. (e)
the Corporation’s financial statements for the past three
years. (f) all written communications to stockholders generally
within the past three years. (g) a list of the names and business
addresses of the current Directors and officers. and (h) the most
recent annual report delivered to the Nevada Secretary of
State.
7.4.
Forum Selection. Attorneys’ Fees.
Unless the Corporation consents in writing to the selection of an
alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of 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) an action asserting a claim arising pursuant to
any provision of the NRS, or (iv) any action asserting a claim
governed by the internal affairs doctrine shall be a state or
federal court located within the state of Nevada, in all cases
subject to the court’s having personal jurisdiction over the
indispensable parties named as defendants. If any action is brought
by any party against another party, relating to or arising out of
these Bylaws, or the enforcement hereof, the prevailing party shall
be entitled to recover from the other party reasonable
attorneys’ fees, costs and expenses incurred in connection
with the prosecution or defense of such action. For purposes of
these Bylaws, the term “attorneys’ fees” or
“attorneys’ fees and costs” shall mean the fees
and expenses of counsel to the Corporation and any other parties
asserting a claim as set forth in the initial paragraph of this
Section 7.4, which may include printing, photocopying, duplicating
and other expenses, air freight charges, and fees billed for law
clerks, paralegals and other persons not admitted to the bar but
performing services under the supervision of an attorney, and the
costs and fees incurred in connection with the enforcement or
collection any judgment obtained in any such proceeding. The
provisions of this Section 7.4 shall survive the entry of any
judgment, and shall not merge, or be deemed to have merged, into
any judgment.
7.5.
Subject to Law and Articles of
Incorporation. All powers, duties and responsibilities
provided for in these Bylaws, whether or not explicitly so
qualified, are qualified by the provisions of the Articles and
applicable law.
7.6.
Facsimile Signatures. In addition to
the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of
any officer or officers of the Corporation may be used at any time
unless otherwise restricted by the Board or a committee
thereof.
7.7.
Time Periods. In applying any provision
of these Bylaws which requires that an act be done or not be done a
specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be
included.
7.8.
Electronic Transmission. For purposes
of these Bylaws, “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.
8.1.
Indemnification in Actions, Suits or
Proceedings other than Those by or in the Right of the
Corporation. Subject to Section 8.3 and Section 8.10, the
Corporation shall, to the fullest extent permitted by the NRS and
applicable Nevada law as in effect at any time, indemnify, hold
harmless and defend any person who: (i) was or is a director or
officer of the Corporation or was or is a director or officer of a
direct or indirect wholly owned subsidiary of the Corporation, and
(ii) was or is a party or is threatened to be made a party to, or
was or is otherwise directly involved in (including as a witness),
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of
the fact that such person was or is a director or officer of the
Corporation or any direct or indirect wholly owned subsidiary of
the Corporation, or was or is serving at the request of the
Corporation as a director, officer, employee, partner, member or
agent of another corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other
enterprise, whether the basis of such proceeding is alleged action
in an official capacity or in any other capacity, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea or nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that such person’s conduct was unlawful.
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8.2.
Indemnification in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject
to Section 8.3 and Section 8.10, the Corporation shall indemnify,
hold harmless and defend any person who: (i) was or is a director
or officer of the Corporation or was or is a director or officer of
a direct or indirect wholly owned subsidiary of the Corporation,
and (ii) was or is a party or is threatened to be made a party to,
or was or is otherwise directly involved in (including as a
witness), any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person was or is a director or
officer of the Corporation or any direct or indirect wholly owned
subsidiary of the Corporation, or was or is serving at the request
of the Corporation as a director, officer, employee, partner,
member or agent of another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or
other enterprise, and whether the basis of such action, suit or
proceeding is alleged action in an official capacity or in any
other capacity, against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation.
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the Courts in the State of Nevada or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court in the
State of Nevada or such other court shall deem proper.
8.3.
Authorization of Indemnification. Any
indemnification or defense under this Section 8 (unless ordered by
a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because such
person has met the applicable standard of conduct set forth in
Section 8.1 or Section 8.2, as the case may be. Such determination
shall be made, with respect to a person who is a director or
officer at the time of such determination,: (i) by a majority vote
of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee
of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and
officers, by any person or persons having the authority to act on
the matter on behalf of the Corporation. To the extent, however,
that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any
action, suit or proceeding set forth in Section 8.1 or Section 8.2
or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
therewith, without the necessity of authorization in the specific
case.
8.4.
Good Faith Defined. For purposes of any
determination under Section 8.3, a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe such person’s conduct was
unlawful, if such person’s action is based on good faith
reliance on the records or books of account of the Corporation or
another enterprise, or on information supplied to such person by
the officers of the Corporation or another enterprise in the course
of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by
an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or
another enterprise. The term “another enterprise” as
used in this Section 8.4 shall mean any other corporation or any
partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise of which such person was
or is serving at the request of the Corporation as a director,
officer, employee, partner, member or agent. The provisions of this
Section 8.4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Section 8.1 or
Section 8.2, as the case may be.
8.5.
Expenses Payable in Advance. Expenses,
including attorneys’ fees, incurred by a current or former
director or officer in defending any action, suit or proceeding
described in Section 8.1 or Section 8.2 shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Section
8.
8.6.
Non-exclusivity of Indemnification and
Advancement of Expenses. The indemnification, defense and
advancement of expenses provided by or granted pursuant to this
Section 8 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may
be entitled under the Articles, any agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another
capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in
Section 8.1 or Section 8.2 shall be made to the fullest extent
permitted by applicable law. The provisions of this Section 8 shall
not be deemed to preclude the indemnification of, or advancement of
expenses to, any person who is not specified in Section 8.1 or
Section 8.2 but whom the Corporation has the power or obligation to
indemnify under the provisions of the NRS or
otherwise.
8.7.
Insurance. The Corporation may purchase
and maintain insurance on behalf of any person who was or is a
director, officer, employee or agent of the Corporation, or a
direct or indirect wholly owned subsidiary of the Corporation, or
was or is serving at the request of the Corporation, as a director,
officer, employee, partner, member or agent of another corporation,
partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the Corporation would have the power or the
obligation to indemnify, hold harmless or defend such person
against such liability under the provisions of this Section
8.
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8.8.
Certain Definitions. For purposes of
this Section 8, references to “the Corporation” shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who was
or is a director, officer, employee or agent of such constituent
corporation, or was or is serving at the request of such
constituent corporation as a director, officer, employee, partner,
member or agent of another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the
provisions of this Section 8 with respect to the resulting or
surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had
continued. For purposes of this Section 8, references to
“fines” shall include any excise taxes assessed on a
person with respect of any employee benefit plan. and references to
“serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries. and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Section 8.
8.9.
Survival of Indemnification and Advancement of
Expenses. The indemnification, defense and advancement of
expenses provided by, or granted pursuant to, this Section 8 shall,
unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
8.10.
Limitation on Indemnification.
Notwithstanding anything contained in this Section 8 to the
contrary, except for proceedings to enforce rights to
indemnification and defense under this Section 8 (which shall be
governed by Section 8.11(b)), the Corporation shall not be
obligated under this Section 8 to indemnify, hold harmless or
defend any director, officer, employee or agent in connection with
a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the
Board.
8.11.
Contract Rights.
(a)
The obligations of
the Corporation under this Section 8 to indemnify, hold harmless
and defend a person who was or is a director or officer of the
Corporation or was or is a director or officer of a direct or
indirect wholly-owned subsidiary of the Corporation, including the
duty to advance expenses, shall be considered a contract between
the Corporation and such person, and no modification or repeal of
any provision of this Section 8 shall affect, to the detriment of
such person, such obligations of the Corporation in connection with
a claim based on any act or failure to act occurring before such
modification or repeal.
(b)
If a claim
under Section 8.1, Section 8.2 or Section 8.5 is not paid in full
by the Corporation within 90 days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall
be 45 days, the person making such claim may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of
the claim. To the fullest extent permitted by applicable law, if
successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, such person shall be
entitled to be paid also the expense of prosecuting or defending
such suit. In (i) any suit brought by such person to enforce a
right to indemnification hereunder (but not in a suit brought by
such person to enforce a right to an advancement of expenses) it
shall be a defense, and (ii) in any suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such
expenses upon a final adjudication that such person has not met any
applicable standard for indemnification set forth in the NRS.
Neither the failure of the Corporation (including its directors who
are not parties to such action, a committee of such directors,
independent legal counsel or its Stockholders) to have made a
determination prior to the commencement of such suit that
indemnification of such person is proper in the circumstances
because such person has met the applicable standard of conduct set
forth in the NRS, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a
committee of such directors, independent legal counsel or its
Stockholders) that such person has not met such applicable standard
of conduct, shall create a presumption that such person has not met
the applicable standard of conduct or, in the case of such a suit
brought by such person, be a defense to such suit.
8.12.
Indemnification Agreements. Without
limiting the generality of the foregoing, the Corporation shall
have the express authority to enter into such agreements as the
Board deems appropriate for the indemnification of present or
future directors and officers of the Corporation in connection with
their service to, or status with, the Corporation or any other
corporation, entity or enterprise with whom such person is serving
at the express written request of the Corporation.
9.
Amendments. These Bylaws may be altered
or repealed and Bylaws may be made at any annual meeting of the
stockholders or at any special meeting thereof, if notice of the
proposed alteration or repeal of Bylaw or Bylaws to be made be
contained in the notice of such special meeting, by the affirmative
vote of a majority of the voting power of the capital stock issued
and outstanding and entitled to vote thereat, or by the affirmative
vote of a majority of the Board at any regular meeting of the
Board, or at any special meeting of the Board, if notice of the
proposed alteration or repeal, or Bylaw or Bylaws to be made, be
contained in the notice of such meeting.
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